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The State Commission on Judicial Conduct has issued a public admonition to Texas Supreme Court Justice Nathan Hecht regarding comments he made to the press last year in support of the nomination of White House Counsel Harriet Miers to the U.S. Supreme Court. Last fall Hecht estimated that he gave 120 interviews to the press about Miers’ qualifications for the bench — including information about her religious beliefs and views on abortion — after her Oct. 3, 2005, nomination came under attack from conservative groups. [ See "Texas Attorneys Support Dallas Native's High Court Nomination," Texas Lawyer , Oct. 10, 2005, page 1.] At that time, Hecht jokingly said to Texas Lawyer that he had been acting as a “PR office for the White House” and had been filling in gaps about Miers’ background to the press, countering some conservatives’ skepticism about her qualifications — statements that were referenced in the commission’s admonition. [See the commission's admonition.] On Oct. 27, 2005, Miers withdrew her name from consideration to become a high court justice. In its May 10 admonition, released today, the commission found that Hecht’s actions constituted “persistent and willful violations” of two canons of the Texas Code of Judicial Conduct. Canon 2b states that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” And Canon 5(2) states that “a judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party.” “The commission concludes from the facts and evidence presented that Justice Hecht allowed his name and title to be used by the press and the White House in support of his close friend Harriet Miers, a nominee for the office of United States Supreme Court justice.” In a statement, Hecht says he disagrees with the commission’s admonition and he plans to challenge it. “I believe that my statements on matters of national public interest did not offend canons of judicial ethics and were fully protected by the First Amendment as core speech,” Hecht says. “As best I can determine, the Commission’s action is unprecedented despite many judges, over the years, providing factual information and endorsements to the judiciary committee and the public concerning nominees to the federal bench.” Disciplinary actions by the commission against sitting Texas Supreme Court justices are rare. Hecht’s admonition marks only the third time the commission has disciplined a sitting Texas Supreme Court justice. Last week, Hecht filed a challenge to the admonition with the Texas Supreme Court. The high court is responsible for appointing a panel made up of three justices from intermediate courts of appeals who will hold a public hearing to review Hecht’s admonition, says Seana Willing, executive director of the State Commission on Judicial Conduct. “Those three judges will write an opinion about whether or not to dismiss the case, affirm the sanction and possibly give the judges in Texas some guidance about where the First Amendment line is these days,” Willing says. The Texas Supreme Court has not yet appointed the three justices who will hold the hearing. In 2002′s Republican Party of Minnesota v. White, the U.S. Supreme Court said that judicial candidates can speak about controversial topics that may come before them as judges. The opinion did away with the “announce clause” — the section of Minnesota’s judicial canons that prevented such comments. After White, the Texas Supreme Court eliminated a similar “announce clause” from the Texas Code of Judicial Conduct. Willing doesn’t think Hecht’s admonition has anything to do with the announce clause. Rather, the admonition concerns Hecht’s endorsement of a candidate for office. Whether Canons 2b and 5(2) violate Hecht’s free-speech rights will likely be an issue at his hearing before the three-justice panel, Willing says. “There’s going to be a debate, at least esoterically, about what constitutes a candidate and whether this constitutes an endorsement, and whether this is free speech that is protected by the First Amendment,” Willing says. “I’m assuming those will be the issues that the court of review will be asked to comment on.” Charles “Chip” Babcock, a partner in Jackson Walker in Dallas who represents Hecht in the disciplinary matter, believes that the admonition violates the justice’s free-speech rights. “So it is permissible and a constitutional right that you can announce your position on abortion, the war in Iraq or anything else, but you can’t announce your position on whether Harriet Miers would make a good justice on the United States Supreme Court?” Babcock asks. “Yeah, I disagree with that.”

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