A narrow reading of a 2002 U.S. Supreme Court opinion that permits judicial candidates to announce their views on controversial issues could lead to concomitant exemption from recusal requirements.

That suggestion was made by David B. Rottman of the National Center for State Courts in his remarks to a League of Women Voters forum on Oct. 28 in Bloomington.

Referring to a Supreme Court candidate in Alabama who spoke out on topics that might come before the court, Rottman said the judge's free speech rights might trump judicial canons that call for recusal when litigation involves such an issue.

But the Alabama candidate who campaigned against abortion lost his election, despite a war chest of $3.9 million from tort reform PACs. Similarly, a well-financed, anti-abortion candidate for the Kentucky Supreme Court also was defeated.

Other restrictions remain in many states on whether a judicial candidate may make a pledge, promise or commitment that would appear to be grounds for disqualification based on lack of impartiality.

Indiana attorney James Bopp Jr., who argued the White appeal, and won, believes the First Amendment also applies to pledges and commitments, according to an article in the November issue of the ABA Journal.

Bopp told the Journal that “candidates and judges should be able to say what they think, and then be expected to act according to the law and facts.”

He said he might sue states that follow the statement in the concurrence by Justice Anthony M. Kennedy that they “may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards.”

The ABA Joint Commission to Evaluate the Model Code of Judicial Conduct addresses the situation in a revised Canon 4 that is expected to be reviewed during the 2007 midyear meeting.

That canon advises judges and candidates against making political statements that are “inconsistent with the independence, integrity or impartiality of the judiciary.”

Candidates also would be prohibited from pledging how they would rule on an issue, but would be allowed to at least state their views.

Mark I. Harrison, chair of the joint commission, said the overhaul of judicial canons reflects a precept that a judge's conduct must enhance public trust in the judiciary.

The commission reportedly rejected Bopp's detailed suggestions favoring pledges and commitments by judicial candidates. Harrison told the ABA Journal, “We think there's a direct correlation between expressing one's views and the potential for disqualification.”

In his remarks to the League of Women Voters forum, David Rottman of the National Center for State Courts echoed Justice James Knecht's earlier suggestion that judges should explain decisions as a means of informing people about the judicial system (see related story on page 6).

Rottman expressed his view that some courts have failed to make sure that the public and the news media understand the reasoning behind controversial decisions.

Although the decision was based on an interpretation of a state's constitution, Rottman said it appeared to some that “the justices woke up one morning and decided they would take somebody's property.”

The popular theme was reaffirmed later in the forum by John Foreman, editor and publisher of the News-Gazette in Champaign and Urbana.

He pointed out that the language and rules of legal and judicial processes are difficult for reporters and editors to understand and explain to readers, but the news media get little help from the profession.

“Judges and lawyers resist the process but protest the results” of news coverage of case law, Foreman said.

He also chided judicial candidates for “hiding behind the rules against making campaign statements, and saying only that they will be tough and fair.”

Both Foreman and Knecht complimented the Illinois State Bar and other associations for conducting judicial evaluations and disseminating the results.

“Bar association evaluations and poll results are among the few pieces of information we get,” Foreman said, adding that even “extraordinary bad television ads” provide some information that may be “better than none.”