The Quiet Campaigns
In Pennsylvania, we elect our judges. Necessarily, then, persons who would be judges must mount electoral campaigns. The content of such campaigns, however, is not entirely up to the person running for office. Persons running for judicial office are bound by a judicial code of ethics promulgated by the Pennsylvania Supreme Court. Canon 7(B)(1)(c) of the Code of Judicial Conduct states that candidates for judicial office:
should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court[.]
Canon 7 seeks to balance several interests, including the electorate's right to know where a candidate stands on any given issue, a candidate's right to communicate his or her views to the electorate, and the institutional integrity of the judicial system. Does Canon 7 provide judicial candiates with sufficient guidance? When the standard is whether a statement might "appear to commit the candidate" with respect to an issue likely to come before the court, I'd say the guidance is minimal -- any statement at all could be said to "appear to commit the candidate" on some issue or another.
Apparently, I am not alone in finding Canon 7 to be a bit ambiguous. According to Peter Jackson at centredaily.com, the Pennsylvania Family Institute was interested in hearing the views of judicial candidates and, to that end, mailed a questionnaire to 120 judicial candidates across the state:
Only 19 people responded. And many of them declined to answer individual questions, indicating they they were concerned about violating ethical rules, especially if they became a judge and failed to step down from a case involving an issue on which they had spoken out.
Obviously, the case of the PFI questionnaire provides only anecdotal evidence, but, for what it is worth, that evidence suggests that judicial candidates may not find Canon 7 to be perfectly clear regarding the extent to which they may communicate with the public on issues of substance. In any event, we need not rely on anecdotal evidence -- the PFI, along with six judicial candidates in Lancaster County, have sued the Judicial Conduct Board and staff attorneys for the Disciplinary Board alleging that Canon 7 amounts to an unlawful abridgement of candidates' First Amendment rights.
The Judicial Conduct Board briefly responded to the suit:
Joseph A. Massa Jr., chief counsel for the Judicial Conduct Board, said the rules clearly let judicial candidates take public stands on political issues. For example, they may declare that they oppose abortion or support the death penalty, he said.
"But they can't say that, in any case that comes before (them), regardless of the evidence ... that they will (rule) in a preordained manner," Massa said.
Maybe it's just me, but Massa's example seems just plain wrong under Canon 7. If a judicial candidate publicly states opposition to abortion, does Massa really believe that the statement might not "appear to commit the candidate" on the issue of abortion? In any event, Massa's example -- which was intended as an example of political speech "clearly" permitted under the Code -- aptly illustrates the ambiguity confronting judicial candidates in Pennsylvania. Now, a federal court will determine whether that ambiguity unconstitutionally burdens a judicial candidate's First Amendment rights.
