The Northern District of Indiana agreed with Bopp and Right to Life that one of Indiana's judicial canons violated judicial candidates First Amendment rights. That canon prohibits judicial candidates from making "pledges or promises" or making statements that "commit or appear to commit" the candidates on cases, issues or controversies likely to come before the court. The 7th Circuit reversed the district court opinion and ordered the lower court to dismiss the case, holding that the plaintiffs lacked standing to bring a suit challenging Indiana's judicial canons.
The opinion details how Bopp went out of his way to manufacture a case he could litigate in the courts, which is apparently something he has become very good at doing all over the country as of late. Bopp and Right to Life baited the Indiana Commission on Judicial Qualifications to enforce the judicial canon after it sent out a questionnaire to judicial candidates asking them to declare their position on abortion in 2004. But as the 7th Circuit opinion found, the Commission didn't take the bait. Judge Evans writes:
Viewed somewhat skeptically, the situation is a chess game. Candidates may not want to answer the questions and would perhaps be happy to have the Code as a reason to decline. When that is true, Right to Life, while ostensibly asserting the right of candidates to speak, may, in fact, be acting against what the candidates see as their best interests. And probably much to Right to Life’s dismay, the Commission, by taking no action against candidates, is simply not playing. The voters? One can hope that they can discern when a candidate is ducking a legitimate question and when she is legitimately refusing to become a pawn. Perhaps because of the strange alignment of interests, the plaintiffs have a problem showing that there is a case or controversy . . .
In a right-to-listen case, Right to Life would have standing if there are otherwise willing speakers who are constrained by the Judicial Code. Right to Life says there are. We cannot agree. No judicial candidate in Indiana has been disciplined for a violation of the canon at issue. The two candidates who answered the questionnaire in 2004 have stated that they have no fear of disciplinary action for doing so. In addition, of the remaining six who responded to Right to Life but did not answer the questions, clearly none stated that they declined to answer based on the canon. Some mentioned the canon but went on to say that they were relying on their own personal feeling as to what was appropriate for a judicial candidate to say. Right to Life attempted to put words in the candidates’ mouths by setting out a footnote to the response “decline” on the questionnaire. The footnote seems to be an attempt to indicate that the only reason for declining would be the Code. The individual responses show that is not true and negate any force that the footnote could conceivably have. In addition, the organization’s targeted, chosen speaker, Newton, turned out to be unwilling to speak regardless of the Code. Right to Life has failed to
establish standing to bring this action.
While today's decision is a victory for an independent judiciary in Indiana, Bopp's and his Right to Life's efforts to force fundamentalist Christian law on our judiciary is far from over. That is why it is all the more important for traditional Republicans to stand up and fight these extremists within the party who simply don't believe in the separation of Church and State. In this sense, Bopp and Right to Life are no different than the extremists who rule many Middle Eastern Muslim nations and who subjogate the rights of individuals to the dicates of fundamentalist intepretations of their religious faith. Their views are completely contrary to the principles upon which the party of Lincoln was founded.
Hat tip to Doug Masson at Masson's Blog, who has his own take on today's decision here.