Wednesday, July 12, 2006

Bopp's Efforts To Make Indiana Judges Legislators

Awhile back, AI reported on the efforts of the fundie's favorite lawyer in America, Terre Haute attorney Jim Bopp, to strike down a Kentucky judicial rule requiring judicial candidates to refrain from announcing their positions on public matters that might come before the court. We neglected to mention a similar lawsuit Bopp had already filed in the Northern District of Indiana on behalf of Indiana Right to Life seeking to declare a similar Indiana judicial conduct rule unconstitutional. The Indiana Law Blog reminded us of that in a post today.

The issue in Indiana arose after Bopp's Right to Life organization began sending questionnaires to judicial candidates respecting their views on various aspects of the abortion issue. Very few judicial candidates returned responses to Indiana Right to Life. The Judicial Qualifications and Disciplinary Commission had sent out a memorandum advising judicial candidates that they are constitutionally permitted to state their general views about social and legal issues, but they have a duty to ensure that the statements they make do not call into question his or her impartiality. Upon inquiry from Indiana Right to Life, the Commission acknowledged that it had advised candidates not to respond to the questionnaires, although it did not threaten discipline against a candidate who chose to respond. That prompted Bopp to file a lawsuit challenging the constitutionality of the judicial rule.

At issue in the case is judicial canon 5A(3) which states that "a candidate for judicial office shall 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 3E(1) further requires a judge to "disqualify himself or herself from any preceding in which the judge's impartiality might reasonably be questioned." Right to Life argues that the recusal requirement in 3E(1) violates a candidate's First Amendment right, while 5A(3), the "pledge or promise" and "commit" clauses, violates both the First Amendment and 14th Amendment.

Bopp argues that the public has a right to know a judicial candidate's "legal or political views." Otherwise, he contends voters' rights are undermined. When it comes to "disputed legal and political issues", Bopp believes judicial candidates should be subject to full disclosure. The Commission believes that the recusal requirement is essential to "preserving impartiality in the judiciary in that it guarantees that a judge will apply the law to all parties in an equal manner." As to the "pledge or promise" and the "commit" clauses, the Commission says the rule protects the "due process rights of litigants by preserving the impartiality and appearance of the judiciary."

What Bopp seeks to do is to apply litmus tests to all judicial candidates. He and the extremist Christian fundamentalists he represents want judges to commit in advance to being "pro life", "anti-gay" or whatever "flavor of the day" the Christian right chooses to invoke into our electoral process to divide us along cultural lines. We rightfully expect candidates in the political branches of our government to let us know where they stand on these issues. At the same time, we must re-affirm the maxim that justice is blind. The job of our judiciary is to interpet the law as written in our constitution and our statutory laws. If Bopp succeeds, judges will become nothing more than super legislators, leading to a complete breakdown in the important checks and balances we have built into our form of government to protect oppressed minorities from the tyranny of a majority.

If Bopp's suit is successful, the danger that will follow in its path cannot be understated. We must have an independent judiciary to ensure anything approaching a fair judicial system. Bopp wants to replace an independent judiciary with one that is held captive to the extremist, but well-funded special interest groups like those he represents. If the likes of Bopp had their way a long time ago, our courts would have never intervened to end discrimination against African-Americans, women, gays and other oppressed minorities. To Bopp, courts rulings such as Brown v. Board of Education, Roe v. Wade, or Lawrence v. Texas are the product of "activist" judges. That's short-hand for judges who support equality for all Americans.

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