Thursday, March 8, 2012

Nice try, Mr. Gillette

Nice analysis, Mr. Gillette.

You're right that an ethics violation is no slam dunk here. But I've got some bones to pick:

1) You consider the possibility that Judge Flannigan's activity was participating in partisan politics against a particular candidate, but argue that "the rule does not prohibit such activities." I think the rule does prohibit such activities. For example, it would be absurd to think that Judge Flannigan (or any judge) could now actively campaign <em>against</em> the retention of Scott Walker without running afoul of this rule. Maybe there are purely textualist arguments against that conclusion, but they're debatable; whether such activity would violate the spirt of the rule, however, is not debatable. It would. Think of it this way: would it have been ethical for David Prosser to campaign against the recall campaign? The answer is pretty obvious, I think.

2) I don't buy your argument from ejusdem generis. I don't think "affairs ... platforms ... or activities" of a political party are all kinds of public activities. Indeed, "activities" seems to be about the broadest word you could come up with. My interpretation is that the list of activities is a poor attempt to specify the entire universe of partisan political activities except for voting. In defense of the drafters, recall elections used to be a rare thing, so they're excused for not thinking of it.

3) To me the question comes down to whether signing this petition is more like voting or more like campaigning. Perhaps reasonable minds can differ. But as you point out, SCR 60.05(a) breaks the tie. The whole point of the prohibition on partisan political activities is to reduce the appearance of bias and impropriety. But signing the recall petition, Judge Flannigan surely engaged in conduct that casts "reasonable doubt on [his] capacity to act impartially as a judge." I'm not arguing that Judge Flannigan necessarily should have recused in the voter ID case; only that his partisan political activity in signing the recall petition in and of itself was improper.

Perhaps I'm too persnickety. I was a federal judicial law clerk, and thus was prevented by the Hatch Act from doing anything remotely resembling a political activity. Voting was it. I got used to it. I kind of enjoyed it, actually, because it gave me an excuse for turning away solicitors. (Now I just say, "no thanks," no matter what the question or entreaty is.) But because of this experience I expect at least judicial officers to act in the same way that I was able to act for those two years. It wasn't so hard.

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