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A group of state judges, judicial hopefuls and an anti-abortion organization has taken its challenge to a broad range of restrictions on campaign speech by judicial candidates to the U.S. Supreme Court. A longtime foe of those restrictions, James Bopp Jr. of Bopp, Coleson & Bostrom, in Terre Haute, Ind., has filed two petitions for review arguing that more than half a dozen clauses in Indiana and Wisconsin judicial codes violate the First and 14th Amendments. Bopp is asking the justices to grant review of decisions by the 7th U.S. Circuit Court of Appeals in Bauer v. Shepard from Indiana and Siefert v. Alexander from Wisconsin. “These decisions aren’t consistent with the First Amendment’s broad protections of political speech, and they most certainly aren’t consistent with what other courts are doing across the country,” Bopp asserted in a statement late yesterday. The Bauer case stems from a 2008 lawsuit filed by the Indiana Right to Life Committee, judicial candidate Torrey Bauer and sitting state Judge David Certo in which they unsuccessfully challenged Indiana’s rules prohibiting personal solicitation of campaign contributions and involvement in political party leadership and activities as well as the so-called commits and promises clauses. The latter, they claimed, prevent judicial candidates from answering questionnaires seeking their positions on certain issues. The Siefert case arises out of the lawsuit filed by Milwaukee Circuit Court Judge John Siefert. He sought to make personal phone calls and personal invitations to fundraising events, and to sign letters seeking contributions to his upcoming 2011 election campaign as well as to endorse candidates in that election. Last summer in the Bauer case, Chief Judge Frank Easterbrook of the 7th Circuit wrote a strongly worded opinion for the three-judge panel in which he warned that if certain challenged provisions in the Indiana code were unconstitutional, so too were similar canons of the federal judges’ code. “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function,” Easterbrook wrote. “Preserving that confidence is a compelling interest.” Easterbrook’s credentials as “a conservative superstar can scarcely be overstated,” said judicial election scholar James Sample of Hofstra University School of Law. “His opinion is a resounding affirmation of the principles underlying codes of judicial conduct in the states. I think his opinion is some indication folks like Mr. Bopp represent the ideological extreme position at odds with a majority of Americans on the left and right alike.” From 2002 until 2009, the Supreme Court has heard three major state judicial election cases. In Republican Party of Minnesota v. White, which Bopp successfully argued, the justices in 2002, voting 5-4, struck down Minnesota’s so-called announce clause prohibiting judicial candidates from discussing disputed legal or political issues. Justice Sandra Day O’Connor later said she regretted her vote with the majority. There is some tension between the White decision and the justices’ decision last year in Caperton v. Massey Coal, in which it held that due process required the recusal of a West Virginia Supreme Court justice from a case involving a party who had made a significant contribution to the justice’s campaign, according to election scholar Roy Schotland of Georgetown University Law Center. Bopp, however, insisted, “Judges that run for elective office are entitled to ask for money, to state their views about other candidates, and to be involved with political parties just like any other candidate.” But the majority in both White and Caperton made clear that judicial elections were not the same as other elections, countered Schotland. There currently are conflicts in the circuits over some of the campaign restrictions now being challenged by Bopp, he added, which may weigh in favor of Supreme Court review. Sample added that the “battle” now is over the line between the White and Caperton decisions. “It’s an important line,” he said. “In the new era of judicial elections, there’s more money involved and greater awareness on the part of stakeholders as to how the system might be gamed. These clauses are in many respects the first line of defense.”

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