MADISON, Wis. — Judicial candidates in Wisconsin can discuss their beliefs on
the campaign trail as long as they don’t promise to rule one way or another, a
federal judge has ruled.
U.S. District Judge John Shabaz’s decision could give voters a better idea of
what judicial candidates stand for, said Mike McCabe, executive director of the
government watchdog group Wisconsin Democracy Campaign.
Until now, McCabe said, judicial candidates have had to choose their words
carefully for fear of compromising their impartiality.
“We’ve reached a point where voters basically have to choose blindly in
judicial campaigns because judges can’t say anything about what they believe or
where they stand or how they might rule in a case,” McCabe said. “Justice is
supposed to be blind, but voters aren’t supposed to be blind.”
Shabaz on May 29 struck down a section of the state’s judicial-conduct code
that prohibits judges and judicial candidates from making public statements that
appear to commit them on an issue, calling it too broad and unconstitutional.
They can disclose opinions as long as they don’t clearly commit to a decision,
Statements such as “I will” or “I will not” imply commitment, Shabaz said.
Phrases such as “I believe” or “It is my opinion” are acceptable, he said.
Judges and candidates should be able to share thoughts on issues to
demonstrate they have pondered problems and formed opinions, Shabaz added.
“There is a very real distinction between a judge committing to an outcome
before the case begins, which renders the proceeding an exercise in futility for
all involved, and a judge disclosing an opinion and predisposition before the
case,” the judge wrote.
The ruling comes after Wisconsin Right to Life, an anti-abortion group, and
eight state residents filed a lawsuit in December. They challenged the public
statement section of the conduct code as well as another provision that prevents
judges and candidates from making pledges, promises or commitments.
The group and the residents filed the suit after several judicial candidates
this year and last declined to answer a questionnaire on how they interpret
abortion laws. The candidates said the conduct code prevented them from
Shabaz ruled responses to the survey are free speech and don’t constitute
promises, pledges or commitments.
James Bopp Jr., an Indiana lawyer representing Wisconsin Right to Life, said
he agreed candidates shouldn’t telegraph how they would rule in a case. But they
should be allowed to discuss legal issues, he said.
“Saying Roe v. Wade was not correctly decided is just talking about
your judicial philosophy,” Bopp said.
Kevin St. John, a spokesman with the state Justice Department, which
represented the state in the case, declined to comment.
Still, the Wisconsin Democracy Campaign’s McCabe said he was unsure whether
the ruling would spark in judicial races the kind of free-for-all rhetoric
common in campaigns for the state Legislature or governor.
“Once they start commenting on issues, you can begin to read into those
comments how they might rule on a case. They’re going to be very reluctant to go
there,” McCabe said. “This ruling begins to open a door. That’s not to say
judicial candidates will walk through that door.”