Partisan gerrymandering, one of the subjects of the Supreme Court’s important ruling in June in the Moore v. Harper case (more on Moore here), continues to be a hot topic in courts and statehouses around the nation, especially since the Court in Moore rejected the so-called “Independent State Legislature” theory and reaffirmed the permissibility of state court enforcement of state constitutional limitations in the context of federal as well as state legislative districting. Things are particularly fractious in Wisconsin, where Republican leaders in the elected legislature are threatening to impeach new Wisconsin Supreme Court Justice Janet Protasiewicz with impeachment proceedings if she fails to recuse herself in cases that have been filed challenging, as violative of the Wisconsin constitution, the state’s districting maps used for state and congressional elections that were drawn by a Republican majority after the 2020 census. The basis for the threatened impeachment? That Justice Protasiewicz, who was elected in April after a bitter, partisan statewide contest and who took office last month (giving the progressive wing of the court a 4-3 majority), had when she was running for office called the maps “rigged” and “unfair.” At the end of May the Wisconsin Judicial Commission rejected “several” complaints filed against Protasiewicz “alleging that [she] violated Supreme Court Rule 60.06(3)(b) and other related provisions of the Code of Judicial Conduct as a candidate for Supreme Court justice, by making statements of [her] personal views concerning several contentious political issues during [her] campaign . . . .”
The Commission did not offer detailed reasoning for its dismissal of the complaints but did in its letter to Protasiewicz (which she then, with the Commission’s permission, made public) say that it had examined her comments, the state judicial code of ethics, state supreme court rules, and applicable decisions by federal and Wisconsin state courts.
The threatened impeachment raises many complex legal and political questions (including what happens if an impeachment action is brought by the lower house of the Wisconsin elected legislature but the state senate declines to act on it). But for purposes of my column today, I want to highlight and debunk one fundamental notion that lies at the core of the impeachment calls: that expressing one’s views about a specific legal topic (as a candidate, a nominee, or even as a sitting jurist) can without more be the basis of legitimate threats to remove a judge from office.
The basic reason this premise is specious is relatively intuitive: anyone to whom a judicial nominee or candidate is speaking (whether it be a Senate charged with the decision whether to confirm a nominee or the voting public deciding which candidate to elect), needs specifics in order to understand what a kind of judge the person being evaluated will likely be. Discussions of abstract concepts like “separation of powers,” the “role of individual liberties in society,” or the “proper function of the Judiciary” simply have no meaningful content unless they are applied to particulars. The same can be said for the notions of “respect for states’ rights,” “judicial activism,” “strict construction,” and the like.
Perhaps a few examples can help make the point. Justice Antonin Scalia was famously a “textualist” and an “originalist,” and yet has (openly) ignored the plain text and original history of the Eleventh Amendment in deciding cases about states’ rights. He has also avoided invoking and discussing the text and history of the Fourteenth Amendment’s Equal Protection Clause in propounding his view that the Constitution is “colorblind” and admits of no race-based affirmative action. These cases would seem to make him a rather more complicated textualist/originalist than might initially be supposed. And the same kind of complexity exists for Justices whose votes differ from Justice Scalia’s; Justice Stephen Breyer, for example, in his book, Active Liberty, extols the virtue of deferring to the deliberate will of elected branches, but curiously never explains how his approach can be harmonized with his actions in the so-called partial-birth abortion cases.
Indeed, when it comes to general questions about legal philosophies, virtually everyone is in some non-trivial measure a “textualist” in that almost everyone starts the interpretive journey by looking at the text of the Constitution. Similarly, everyone cares to some extent about the original “history and intent” behind a constitutional provision, and all persons give at least some weight to stare decisis. And so forth. What matters is how a jurist balances all these factors (and others) and resolves conflicts among them. When William Brennan and Antonin Scalia would offer the same basic answer to a question about judicial meta-philosophy the question is nigh useless. To know something about the Constitution and a candidate’s/nominee’s approach to it, one must get a feel for what combination of methodological ingredients a nominee finds most persuasive in particular settings. This can be seen only in the context of discussion of specific past or present controversies.
The Supreme Court itself has essentially voiced agreement with this idea. In Republican Party of Minnesota v. White (one of the cases mentioned in the Wisconsin Judicial Commission’s letter), the Court struck down a Minnesota law that permitted each state court judicial election candidate to discuss his or her general philosophy of judging but forbade him or her from “announc[ing] his or her views on disputed legal or political issues.” Although the First Amendment analysis the Court employed is open to question, the Court was surely right as a policy and practical matter when it observed that allowing “general” discussions of case law and philosophy while at the same time foreclosing specific statements of specific views of candidates does not provide the public with the relevant information voters might very well desire. As Justice Scalia explained for the White majority, “like most other philosophical generalities, [general statements of judicial philosophy] ha[ve] little meaningful content for the electorate unless [they are] exemplified by application to a particular issue of construction likely to come before a court—for example, whether a particular statute runs afoul of any provision of the Constitution.”
Thus, the only way to become meaningfully educated—whether you are a member of an elected legislator charged with selecting or confirming candidates or a citizen preparing to vote in an election—on the meaning of the Constitution and legal issues of importance, and a candidate’s approach to deciding them, is to dig beneath general labels and examine specific historically and currently important controversies, and the candidate’s statements and views about them. When I give a constitutional law exam, if I were to allow students to answer a question without requiring them to comment on specific cases and controversies, what the cases mean, whether the cases were correctly decided, and why or why not, I would learn nothing from or about the test takers.
The competing position—that it is ethically problematic for a nominee or candidate to comment on the merits of particular legal topics would be to prejudge the issues those topics involve, thus making it hard, if not impossible, for the candidate to participate in future cases in which those issues arise is, in a word, rubbish.
For starters, let us note the staggering breadth of justification offered. As the Supreme Court has observed in White, if we define what is out of bounds by what is “likely to come before the courts,” we will have excluded everything, because “[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction.”
More importantly, if a candidate violates principles of good judging and judicial ethics by giving his views on recurring legal issues of the day, why would not the same be true for the sitting Justices themselves who—in written public opinions and dissents—have stated their views on the very same issues in a past case? Would anyone seriously contend that these sitting Justices, who have spoken on an issue in a case, are thereby disqualified from participating in another case at a later time that presents the same or similar questions? Of course not. Justices are still available and well suited to hear the later case, precisely because they are free to change their mind if they become convinced to come out another way. The fact that one’s mind is not empty does not mean it is not open, and open-mindedness is all that judicial ethics and due process for litigants require. This too was confirmed by the Supreme Court in the White ruling, where the majority pointed out that the ABA rules of judicial ethics do not prevent discussion of specific views, but require instead only that a judge’s mindset not be fixed or predetermined.
In response to my argument here, a skeptic might concede that speaking about the rightness or wrongness of particular cases does not make a jurist biased or prejudiced per se, but the skeptic might nonetheless suggest that the practice is problematic and thus something to be avoided if possible. The situation of a sitting Justice would be distinguished from that of a candidate, according to this suggestion, because unlike nominees, Justices simply have no way of doing their jobs without voting (and explaining the votes) in cases that come before them.
This counterargument does not move me. Putting aside whether a Justice has to offer explanatory opinions or instead could simply register votes, I would argue that just as a sitting Justice has a “job to do” in deciding cases, so too does a candidate have a “job to do” in giving the decision-making voters information about the kind of Justice she will be, so that voters can do their constitutionally assigned job of electing the right person.
Moreover, if sitting Justices and judges are justified in talking about the merits of cases only because they have to in order to resolve the cases in front of them, how could one ever explain or defend the quite common practice of Justices and judges talking about the merits of cases in other settings, such as law review articles and speeches? Many Justices and judges regularly analyze, assess, critique, and speculate on past and future types of cases in their extrajudicial speeches and writings, and these activities are not only permitted, they are, as the Court in White reminded, encouraged by the canons of judicial ethics.
Importantly, however, candidate/nominee statements should be worded carefully (as then-candidate Protasiewicz’s apparently were) so as to avoid any inference or impression that the candidate is giving, in order to get elected, promises, or commitments of how she will rule in the future. Explicit or even implicit promises about future rulings are out of bounds–such promises, if either sought or offered, would indeed compromise judicial independence and due process of law.
The Supreme Court in White already recognized this key distinction—between permissible probative information on which predictions might be made, on the one hand, and impermissible promises on the other. (Tellingly, the Wisconsin Judicial Commission’s letter dismissing the complaints against Protasiewicz also cited a federal district court case explicitly elaborating just this distinction.) In striking down the limitation on a candidate’s “announc[ing] his or her views on disputed legal or political issues,” the White Court was careful to point out that Minnesota elsewhere prohibited each judicial candidate from making a “pledge” or “promise” to decide a particular issue in a particular way, a prohibition that was not being challenged and as to which the Court did not express any skepticism. Indeed, as noted earlier, the Court cited the ABA canon on this “anti-promise” notion, suggesting judicial ethics and due process are served by it.