When Judges Must Hold Their Tongues
Stating political opinions can lead to trouble
To this day, Richard Sanders insists that he did nothing wrong. He simply stated his opinion: He attended an anti-abortion March For Life rally and spoke a few words of support - an act that most Americans would see as their inalienable right. But Mr. Sanders was roundly criticized by his peers - even punished - because he is a judge.
By speaking at the rally, Sanders, a Washington State Supreme Court judge, brought into question one of the most sacred tenets of the United States judicial system: impartiality. While he maintains that everyone has opinions and a right to voice them, others say that judges have no right to express opinions on matters they may have to objectively rule on later.
It's a debate that strikes at the heart of Americans' perception of justice. "There is no easy answer, that's what the controversy is all about," says Luke Bierman, director of the American Bar Association's Judicial Division in Chicago. "A judge has to make the call between the code of ethics restraints and free speech, and where those lines get drawn is difficult."
Increasingly, judges are falling on the advocate side of this line. A North Carolina judge was fined $50 by a state bar committee for telling voters during a campaign stop that he was "Republican, conservative and pro-life." An Alabama judge has been ordered by another court to desist from opening jury selection with a prayer and to take down a copy of the Ten Commandments in his courtroom.
"These are issues that do arise with some regularity," says Mr. Bierman. "Certainly, in the last few years, this kind of problem has arisen more and more frequently around the country."
Public and private life Legal experts say the long-debated judicial-speech issue arises from the nearly identical roles of a jurist's public and private life. On the bench or at the beach, a judge is a judge. For some, this doesn't present a problem. "Part of the job is keeping my nutty opinions to myself," says a Seattle judge. "So what if I have to bite my tongue at cocktail parties?"
But away from the salons of Seattle's estates, the question of whether political speech is appropriate for judges has greater consequences. Indeed, the speech issue comes up most often when candidates for a judgeship seek election - and, unlike political candidates, can't promise what they'll do if they win. This is one reason some legal experts say that a degree more of openness could be a blessing. Opening up When judges don't speak out publicly, "we usually discover what we've bought after the candidate is on the bench," notes Robert Bork, a former nominee for Supreme Court justice.
"I think it's refreshing to have judges tell us what they mean," adds David Boerner, a law professor at Seattle University. "The lawyers know it anyway."
The debate over whether a judge has free-speech rights like that of an ordinary citizen is most contentious among judges themselves. Such a right "never really has been clear," says Washington State Supreme Court justice Barbara Durham. "And that's the problem."
In Sanders's case, there was no problem, says State Sen. Lorraine Wojahn. Senator Wojahn brought charges against Sanders, claiming that his actions at the rally 19 months ago revealed a bias that made at least one group - abortion-rights supporters - doubt his objectivity.
Recently, Sanders was found guilty of an ethics breach by the state's judicial-conduct board and now must attend a short course in judicial ethics. But even that light slap irks him. "I think it's an outrage that I be placed on trial and then be punished for giving a one-minute speech to my fellow citizens," says Sanders, the first Washington State Supreme Court justice to be reprimanded. "It's unfair to single me out." He is appealing the ruling and says he was merely exercising the right every American is born with. "Like any judge, I've got opinions on everything," Sanders says. "I just don't keep them secret."