The Indiana Commission on Judicial Qualifications determined that senior judges may endorse candidates for public office, but retiring judges may not. The commission issued its advisory opinion in response to questions posed about endorsements of candidates for public office by retiring and senior judges.
“The Commission’s view is that a retiring judge who is a full-time judicial officer or a continuing part-time judicial officer may not publicly endorse any candidate for public office, as the retiring judge is not a candidate for judicial office. In contrast, because a Senior Judge is a part-time judge who serves only on a temporary basis, the Code of Judicial Conduct does not prohibit a Senior Judge from publicly endorsing candidates for public office. However, a Senior Judge may not use his or her judicial title or court resources (such as wearing a judicial robe) to bolster such endorsements,” according to advisory opinion #1-19.
The commission sought to clarify two questions:
• Whether a retiring judge may publicly endorse a successor candidate for the retiring judge’s seat, and;
• Whether a senior judge may publicly endorse a candidate for public office, and if so, whether the senior judge is permitted to use his or her judicial title and/or be pictured in a judicial robe for such endorsements.
A public endorsement from a retiring judge is not speech in support of his or her campaign, the commission opined, but could rather be perceived as an attempt to trade on the judge’s opinion or prestige of office to further the interests of another.
“Since the judge regularly continues to preside over cases, this may cause members of the public to question the judge’s independence or impartiality because the endorsement (or opposition of a candidate) could be perceived as a bias in favor of or against the candidate’s views when those issues come before the judge,” the opinion states.
“Even more problematic, there is a danger that members of the public may perceive that the retiring judge has ‘assume[d] a role as political powerbroker.’ It is the Commission’s view that these dangers are too great and that the Code of Judicial Conduct simply does not permit a retiring judge who is still on the bench to publicly endorse candidates for public office,” the commission continued.
Senior judges present a different situation, the commission stated, appearing more akin to a lawyer who occasionally presides as judge pro tempore than a full-time judge who has been elected or appointed to serve. The commission warned that senior judges should continue to exercise discretion and wisdom regarding whether to provide endorsements.
“Further, the Commission cautions Senior Judges that they remain subject to other portions of the Code of Judicial Conduct, which would prohibit them from using their judicial titles and court resources to bolster such endorsements. For example, Rule 1.3 of the Code of Judicial Conduct prohibits judges, including Senior Judges, from abusing the prestige of judicial office to advance the personal interests of the judge or others,” the commission concluded. “When a Senior Judge appears in a political candidate’s campaign advertisement in a judicial robe and is referred to by his or her ‘Senior Judge’ title, it is difficult to counter the public perception that the Senior Judge is speaking as a judge and trading on the prestige of that office to advance the political ends of the person the Senior Judge is endorsing.”