Sanders Case Has A Larger Meaning

Do judges have the right to freedom of speech?

A case heard last month by the Washington State Supreme Court could answer the question. If the answer is no, it will be a sad day for voters, who are entrusted by law with the right to elect judges.

The case involves Supreme Court Justice Richard Sanders. In a hotly contested 1995 election, voters placed him on the state’s highest court. During the campaign, he expressed pro-life views. An hour after taking the oath of office, Sanders walked across the street to the Capitol steps, where he spoke at a pro-life rally.

The state Judicial Conduct Commission reprimanded him for his appearance. The commission found nothing wrong with his speech itself, for Sanders did not specify his views concerning abortion. The commission objected to the “political” nature of the rally. According to the state code of judicial conduct (written by the Supreme Court), judges cannot engage in “political activity” or “attend political functions sponsored by political organizations.”

Sanders has appealed the reprimand. At last month’s hearing before judges specially chosen to decide the appeal, debate centered on the meaning of the term “political” and also on whether Sanders is protected by his free speech rights.

Sanders’ attorney noted that it is commonplace for judges to voice general opinions and speak to groups with political agendas, such as unions and bar associations. Justice James Dolliver, for example, is an outspoken foe of the death penalty.

So why, really, did the legal establishment come crashing down on Sanders? It is difficult to avoid the conclusion that the real objection was to Sanders’ opinions and his taste in companions.

Free speech should not exist only for those who share the philosophical tastes of most members of the bench and bar.

The real threat to judicial integrity is not a judge who reveals his views, whatever they are, in a general way. The real threat comes from activist judges who use the bench to make law and use the code of ethics to hide their agenda from the voters. Sanders has been a critic of judicial activism. Maybe that’s his real offense.

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