Siefert v. Alexander

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1713

T HE H ONORABLE JOHN S IEFERT,

Plaintiff-Appellee,

v.

JAMES C. A LEXANDER, et al., in their

official capacity as members of the

Wisconsin Judicial Commission,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-cv-126-bbc—Barbara B. Crabb, Judge.

A RGUED S EPTEMBER 17, 2009—D ECIDED JUNE 14, 2010

Before F LAUM, R OVNER, and T INDER, Circuit Judges.

T INDER, Circuit Judge. The plaintiff, John Siefert, is

an elected Wisconsin circuit court judge in Milwaukee

County. He would like to state his affiliation with

the Democratic Party, endorse partisan candidates for

office, and personally solicit contributions for his next

election campaign, but is concerned because these

2 No. 09-1713

activities are prohibited by the Wisconsin Code of

Judicial Conduct. Rather than violate the code and face

discipline, Siefert filed suit under 42 U.S.C. § 1983 for

declaratory and injunctive relief against the members of

the Wisconsin Judicial Commission, the body that

enforces the Code of Judicial Conduct. After con-

sidering the parties’ cross-motions for summary judg-

ment, the district court granted Siefert’s motion,

declared the rules prohibiting a judge or judicial

candidate from announcing a partisan affiliation, en-

dorsing partisan candidates, and personally soliciting

contributions unconstitutional, and enjoined the defen-

dants from enforcing these rules against Siefert. The

Commission appeals. We affirm the district court’s

holding on the partisan affiliation ban but reverse the

district court’s ruling that the bans on endorsing

partisan candidates and personally soliciting contribu-

tions are unconstitutional.

I. Background

Plaintiff John Siefert was first elected to the circuit

court for Milwaukee County in 1999 and has served as a

judge since. Prior to being elected a circuit court judge,

he was a member of the Democratic Party and partici-

pated in a number of partisan activities. He served as a

delegate to the Democratic National Convention, twice

ran as a Democrat for the state legislature, twice ran as

a Democrat for county treasurer (holding that office

from 1990 to 1993), and served as an alternate elector

for President Bill Clinton in 1992. He would like to

No. 09-1713 3

once again join the Democratic Party and list his party

membership in response to candidate questionnaires.

He believes membership in the Democratic Party would

communicate his desire for social justice and peace,

but does not wish to appeal to partisanship as a

candidate or as a judge. Siefert would also like to

endorse partisan candidates for office. At the time he

initiated this suit, he sought to endorse now-President

Barack Obama; he expressed a desire to endorse

Jim Doyle for governor of Wisconsin in 2010 1 and

President Obama if he decides to run for reelection in

2012. Finally, Siefert would like to solicit contributions

for his upcoming 2011 campaign by making phone calls

to potential contributors, signing his name to fundraising

letters, and by personally inviting potential donors to

fundraising events. He would continue to use a

campaign committee to handle the ministerial tasks of

fundraising and to collect and report donations.

The defendants are the executive director and members

of the Wisconsin Judicial Commission (the “Commission”).

The Commission investigates and prosecutes potential

violations of the Wisconsin Code of Judicial Conduct. The

Commission also issues, from time to time, advisory

opinions on the interpretation of the Code of Judicial

Conduct.

1

Jim Doyle has since announced that he will not run for an-

other term as governor. See Lee Bergquist, Stacy Forster &

Patrick Marley, Doyle Won’t Seek Reelection in 2010, Milwaukee

Journal Sentinel, Aug. 15, 2009, available at http://www.

jsonline.com/news/statepolitics/53302852.html.

4 No. 09-1713

Wisconsin conducts two sets of elections; one set

(i.e., a primary and then general election) is held in

the spring for positions filled through nonpartisan elec-

tions and the other is held in the fall for the partisan

elected positions. Nonpartisan officeholders include

judges of the circuit courts, court of appeals, and

supreme court, as well as the state superintendent of

public instruction, county board members, county execu-

tives, and municipal and school district officers. The

election for these positions is nonpartisan in the sense

that all candidates (who meet the eligibility require-

ments) appear on the ballot without party identification.

Similarly, political parties have no power to slate candi-

dates in the nonpartisan election. Wis. Const. art. VII, § 9;

Wis. Stat. §§ 5.58, 5.60. A spring primary is necessary

if more than two candidates meet the nomination re-

quirements for a nonpartisan position. The top two vote-

getters in the primary proceed to the nonpartisan

April election, which is, in essence, a runoff. Wis. Stat.

§ 8.11; Wis. Blue Book 884 (2009-10). If only one or

two candidates meet the nomination requirements,

no primary is necessary. (Practically, it appears that

incumbent judges, at least recently, are rarely chal-

lenged, and if so, are challenged by one opponent only

and thus subject to only one election in April. See

Laurel Walker, Judicial Selections Not Quite Non-Partisan,

Milwaukee Journal Sentinel, Dec. 25, 2009, available

at http://www.jsonline.com/news/statepolitics/80121422.

html). Voting for offices filled through partisan elections,

including sheriff and district attorney, takes place in

the fall with a primary election to choose a single

No. 09-1713 5

candidate for each of the two major parties, followed

shortly thereafter by a head-to-head partisan general

election. Wis. Blue Book 884; see Wis. Stat. §§ 5.64, 8.16.

Party affiliation has been absent from the ballot in

Wisconsin’s judicial elections since 1913, and the district

court found, based on the work of a historian employed

by the Commission, that a tradition of nonpartisanship

had taken hold among judicial candidates even earlier.

However, Wisconsin did not expressly prohibit judges

from joining a political party until 1968, when it adopted

a comprehensive code of judicial conduct. See Charles D.

Clausen, The Long and Winding Road: Political and

Campaign Ethics Rules for Wisconsin Judges, 83 Marq. L. Rev.

1, 2-3 (1999). In October 2004, the supreme court

amended the code to extend a number of rules to cover

judicial candidates in addition to sitting judges, including

the prohibitions on party membership, partisan endorse-

ments, and personal solicitation of campaign contribu-

tions. See Wisconsin Supreme Court Order 00-07, 2004 WI

134 (Oct. 29, 2004).

The plaintiff challenges three distinct provisions of the

rules adopted in 2004. The challenged provisions are all

contained in Wisconsin Supreme Court Rule 60.06:

SCR 60.06 A judge or judicial candidate shall

refrain from inappropriate political activity.

...

(2) Party membership and activities.

(a) Individuals who seek election or appointment

to the judiciary may have aligned themselves

6 No. 09-1713

with a particular political party and may have

engaged in partisan political activities. Wisconsin

adheres to the concept of a nonpartisan judiciary.

A candidate for judicial office shall not appeal

to partisanship and shall avoid partisan activity

in the spirit of a nonpartisan judiciary.

(b) No judge or candidate for judicial office or

judge-elect may do any of the following:

1. Be a member of any political party.

2. Participate in the affairs, caucuses,

promotions, platforms, endorsements,

conventions, or activities of a political

party or of a candidate for partisan office.

3. Make or solicit financial or other

contributions in support of a political

party’s causes or candidates.

4. Publicly endorse or speak on behalf

of its candidates or platforms.

(c) A partisan political office holder who is

seeking election or appointment to judicial office

or who is a judge-elect may continue to engage in

partisan political activities required by his or

her present position.

...

(4) Solicitation and Acceptance of Campaign

Contributions. A judge, candidate for judicial

office, or judge-elect shall not personally solicit

or accept campaign contributions. A candidate

No. 09-1713 7

may, however, establish a committee to solicit and

accept lawful campaign contributions. The com-

mittee is not prohibited from soliciting and ac-

cepting lawful campaign contributions from law-

yers. A judge or candidate for judicial office

or judge-elect may serve on the committee but

should avoid direct involvement with the com-

mittee’s fundraising efforts. A judge or candidate

for judicial office or judge-elect may appear at

his or her own fundraising events. When the

committee solicits or accepts a contribution, a

judge or candidate for judicial office should also

be mindful of the requirements of SCR 60.03

and 60.04(4).

Siefert challenges the ban on party membership in SCR

60.06(2)(b)1, the ban on partisan endorsements in SCR

60.06(2)(b)4, and the ban on personal solicitation of cam-

paign contributions in SCR 60.06(4). He does not chal-

lenge the ban on “appeal[s] to partisanship and . . .

partisan activity” in SCR 60.06(2)(a) or the balance of

SCR 60.06(2)(b). Nor does he challenge SCR 60.05,

which directs judges to conduct their extra-judicial activi-

ties in a manner that does not cast doubt on the judge’s

capacity to act impartially, demean the judicial office,

or interfere with the proper performance of judicial duties.

II. Discussion

A little background on the law surrounding the First

Amendment rights of elected judges and judicial candi-

dates is helpful to understanding what follows. In 2002,

8 No. 09-1713

the Supreme Court decided Republican Party of Minn. v.

White (White I), 536 U.S. 765 (2002). White I struck down

a Minnesota canon of judicial conduct that prohibited

judges and judicial candidates from announcing their

views on disputed legal and political issues. Id. at 788.

The Court, applying a strict scrutiny approach, recog-

nized a compelling state interest in preventing bias for

or against particular litigants, but held that the state

did not have a compelling interest in preventing a

judge from having a preconception for or against

particular views. Id. at 776-77.

At the same time, White I left open some of the ques-

tions we deal with today. Justice Kennedy, a member of

the five-vote majority and author of a separate concur-

rence, noted specifically that states are obligated to regu-

late the behavior of their judges to protect the integrity

of their courts. “To strive for judicial integrity is

the work of a lifetime. That should not dissuade the pro-

fession. The difficulty of the undertaking does not mean

we should refrain from the attempt.” Id. at 794

(Kennedy, J., concurring). Justice Kennedy noted that

elected judges “have discovered in the law the enlighten-

ment, instruction, and inspiration that make them

independent-minded and faithful jurists of real integ-

rity.” Id. at 796. We think it beyond doubt that states

have a compelling interest in developing, and indeed

are required by the Fourteenth Amendment to develop,

these independent-minded and faithful jurists. See

Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2259

(2009); In re Murchison, 349 U.S. 133, 136 (1955). State

rules are the means of their development. White I, 536

U.S. at 794 (Kennedy, J., concurring).

No. 09-1713 9

But White I makes clear that there are boundaries to the

state’s regulation of judicial elections. On remand, the

Eighth Circuit, adopting the Supreme Court’s strict

scrutiny approach from White I, invalidated Minnesota’s

ban on partisan activities by judges and the portion of

Minnesota’s ban on direct solicitation of contributions

that prohibited judges from signing fundraising letters

or speaking to large groups of potential donors at

fundraisers. Republican Party of Minnesota v. White (White

II), 416 F.3d 738, 754, 765-66 (8th Cir. 2005) (en banc).

Siefert relies heavily on these cases to challenge Wis-

consin’s code of judicial conduct, which contains provi-

sions that are similar but not identical to those at issue

in White II.

The Commission relies on two government employ-

ment cases, U.S. Civil Serv. Comm’n v. Nat’l Assoc. of

Letter Carriers, 413 U.S. 548 (1973) and Garcetti v. Ceballos,

547 U.S. 410 (2006), to argue that a less stringent standard

applies. Letter Carriers upheld the constitutionality of

Section 9(a) of the Hatch Act, which prohibited

federal employees from taking “an active part in political

management or in political campaigns.” Garcetti dis-

missed a § 1983 claim brought by a deputy district

attorney who claimed that his employer, a county, took

adverse employment action against him after he wrote

a memorandum in which he recommended dismissal of

a criminal case based on government misconduct, and

that this action amounted to retaliation for exercising

his First Amendment right to free speech. Both of

these cases in turn relied on the deferential standard of

review articulated in Pickering v. Bd. of Ed. of Twp. High

10 No. 09-1713

Sch. Dist. 205, Will County, Ill., 391 U.S. 563 (1968), which

balances the public employee’s right to speak out on

matters of public concern against the government’s

interest in “promoting the efficiency of the public services

it performs through its employees.” Id. at 568. In White I,

the Supreme Court reserved the question of whether

this line of cases could justify restrictions on the speech

“of judges because they are judges.” 536 U.S. at 796 (Ken-

nedy, J., concurring) (“Whether the rationale of Pickering

v. Board of Ed. of Township High School Dist. 205, Will

Cty., and Connick v. Myers could be extended to allow

a general speech restriction on sitting judges—regardless

of whether they are campaigning—in order to promote

the efficient administration of justice, is not an issue

raised here.” (internal citations omitted)).

The Commission is correct that, ordinarily, govern-

mental entities have some leeway to proscribe certain

categories of speech among citizens to promote the

efficient performance of governmental functions. See

Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 899

(2010) (collecting cases). “[T]here are certain govern-

mental functions that cannot operate without some re-

strictions on particular kinds of speech.” Id. The First

Amendment allows, for instance, certain prohibitions

on students’ use of vulgar terms at school, Bethel Sch.

Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986), state em-

ployees’ speech about working conditions, Connick v.

Myers, 461 U.S. 138, 146 (1983), prisoners’ union-organizing

activity, Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119,

131-32 (1977), military members’ dissent, Parker v. Levy,

417 U.S. 733, 758 (1974), federal employees’ political

No. 09-1713 11

activity, Letter Carriers, 413 U.S. at 564, state employees’

political activity, Broadrick v. Oklahoma, 413 U.S. 601, 616

(1973), and public school teachers’ speech, Pickering, 391

U.S. at 568. But White I is clear that in the context of

elections, judges are free to communicate their ideas to

voters. Much of our discussion involves our attempt to

harmonize these two strains of First Amendment law.

A. SCR 60.06(2)(b)1: Party Membership

SCR 60.06(2)(b)1 states that “No judge or candidate for

judicial office or judge-elect may . . . [b]e a member of

any political party.” We think this rule falls squarely

within the ambit of the Supreme Court’s analysis in

White I. Just as in White I, the party affiliation ban

forbids “speech on the basis of its content and

burdens a category of speech that is ‘at the core of

our First Amendment freedoms’—speech about the

qualifications of candidates for public office.” White I,

536 U.S. at 774. We agree with Judge Siefert that the

partisan affiliation ban acts to prohibit his speech on

both his political views and his qualifications for office.

Therefore, the clause is a content-based restriction on

speech subject to strict scrutiny. Id.; United States. v.

Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000).

To survive strict scrutiny, SCR 60.06(2)(b)1 must be

narrowly tailored to serve a compelling state interest.

White I, 536 U.S. at 774-75. To show that a restriction on

speech is narrowly tailored, the state must show that

it “does not ‘unnecessarily circumscrib[e] protected ex-

12 No. 09-1713

pression.’ ” Id. at 775 (citing Brown v. Hartledge, 456 U.S.

45, 54 (1982)).

The Commission argues that the ban is necessary to

preserve both “impartiality,” defined as the “absence

of bias or prejudice in favor of, or against, particular

parties, or classes of parties, as well as maintaining an

open mind in considering issues that may come before

the judge,” SCR 60.01(7m), and the appearance of impar-

tiality.2

In White I, the Supreme Court cautioned against vague

invocations of “impartiality.” 536 U.S. at 775. Insofar

as impartiality refers to “the lack of bias for or against

either party to the proceeding,” it is a compelling state

interest. Id. (emphasis in original). This is consistent

with the constitutional guarantee of due process, which

requires recusal in cases where there is a strong prob-

ability of “actual bias.” See, e.g., Caperton, 129 S. Ct. at

2265 (holding that due process required a justice of the

West Virginia Supreme Court of Appeals to recuse

himself from a case involving a company whose

president spent approximately $3 million to elect the

justice while the company’s appeal was pending). On

the other hand, the White I Court squarely rejected

2

The Commission also argues that “nothing in the Constitu-

tion requires Wisconsin to establish a partisan judiciary.”

However, this is not a case about whether partisan affiliation

will appear on the ballot, whether parties will play a formal

role in nominating judicial candidates for the general election,

or any of the other mechanics of the electoral process.

No. 09-1713 13

the argument that a state has a compelling interest in

guaranteeing that judges do not have a “preconception

in favor of or against a particular legal view.” 536 U.S. at

777 (emphasis in original). We not only allow, but

expect, judges to have preconceived views on legal

issues. See Laird v. Tatum, 409 U.S. 824, 835 (1972) (mem.

of Rehnquist, J.) (“Proof that a Justice’s mind at the time

he joined the Court was a complete tabula rasa in the

area of constitutional adjudication would be evidence of

lack of qualification, not lack of bias.”). Finally,

the White I Court left open the possibility that “open-

mindedness”—the willingness to consider opposing

views and remain open to persuasion—is a compelling

state interest. 536 U.S. at 778. Because the Court found

that the canon at issue did not serve the interest of open-

mindedness, it did not decide whether such an interest

was in fact compelling. Id.

The crux of the state’s concern here seems to be that a

judge who publicly affiliates with a political party

has indicated that he is more inclined toward that

party’s stance on the variety of legal issues on which

that party has a position. But that is the purported compel-

ling state interest that White I squarely rejected. 536 U.S.

at 777-78. The state does not have a compelling interest

in preventing candidates from announcing their views

on legal or political issues, let alone prohibiting them

from announcing those views by proxy.3 Nor can casting

3

Wisconsin’s politics, like our nation’s, are dominated by two

large parties which are by no means ideologically homogenous.

(continued...)

14 No. 09-1713

the argument in terms of the “appearance of bias” save

it—because “avoiding judicial preconceptions on legal

issues is neither possible nor desirable, pretending other-

wise by attempting to preserve the ‘appearance’ of that

type of impartiality can hardly be a compelling state

interest either.” Id. at 778.

The Commission also argues that the ban on party

affiliation is designed to prevent bias for or against

parties to a particular case, or the appearance of that

bias. While this interest was certainly recognized in

White I, this rule is not tailored to it.4 Arguably, party

membership is an association that could call into

3

(...continued)

Even on the most polarizing issues, party membership is a

significantly less accurate proxy for a candidate’s views on

contested issues than membership in special interest or advo-

cacy groups, which the Wisconsin Code of Judicial Conduct

does not expressly prohibit. Relying on an advisory opinion

issued by the Commission, the defendants argue that the

Code prohibits judges and judicial candidates from taking a

leadership role in groups such as the Sierra Club or Mothers

Against Drunk Driving, which advocate “social goals

through litigation and legislative action.” Regardless of

whether Wisconsin courts eventually adopt the Commission’s

interpretation of the Code, the flat ban in SCR 60.06(2)(b)1 treats

party membership more harshly than any other affiliation.

4

The Commission does not articulate an argument that SCR

60.06(2)(b)1 furthers impartiality in the sense of open-

mindedness, so we need not decide to what extent, if any,

this interest is compelling.

No. 09-1713 15

question the impartiality of a judge when sitting on a

case involving that party, or perhaps that party’s main

rival. But see White II, 416 F.3d at 755 (“[T]he fact that

the matter comes before a judge who is associated with

the Republican or Democratic Party would not implicate

concerns of bias for or against that party unless the

judge were in some way involved in the case beyond

simply having an ‘R’ or ‘D’ . . . after his or her name.”)

However, nothing in the record suggests that political

parties themselves are such frequent litigants that it

would be unworkable for a judge who chooses to affiliate

with a political party to recuse himself when necessary.

The Commission attacks the practicality of recusal by

arguing that a judge who declared a partisan affiliation

would have to recuse himself in every case where a

party member was a litigant, or where the political party

was supporting a particular outcome, making recusal

impractical. But this significantly overstates the likelihood

of bias toward particular litigants. Membership in a

political party is not the same as membership in a

smaller, more cohesive organization. Furthermore,

mere membership does not connote the type of intricate

relationship with party politics that would create the

appearance of bias. Without some specific, individualized

relationship, the affiliation between a judge who is a

member of a political party and other members of that

political party is simply too diffuse to make it reasonable

to assume that the judge will exhibit bias in favor of his

fellow party members. Indeed, twelve states employ

partisan elections with respect to at least some judge-

ships. See American Judicature Society, Methods of Judicial

16 No. 09-1713

Selection, http://www.judicialselection.us/judicialselection/

methods/selection_of_judges.cfm?state= (last visited June

9, 2010) (identifying Alabama, Illinois, Indiana, Kansas,

Louisiana, New Mexico, New York, Ohio, Pennsylvania,

Tennessee, Texas and West Virginia as states that employ

partisan judicial elections). There is no evidence to

suggest that these states have faced an unworkable

number of recusals as a result of their partisan judicial

elections, nor that their partisan system of elections

works a denial of due process. Cf. White I, 536 U.S. at 776

(noting that due process requires an “impartial” judge

in the sense of a judge lacking a bias for or against either

party to a proceeding). In short, defendants have failed

to show why recusal, which does not restrict speech, is

an unworkable alternative to Wisconsin’s ban on judges

and judicial candidates announcing a party affiliation.

B. SCR 60.06(2)(b)4: Endorsement of Partisan Candi-

dates

SCR 60.06(2)(b)4 prohibits judges and judicial candidates

from “[p]ublicly endors[ing] or speak[ing] on behalf” of

any partisan candidate or platform. Judge Siefert argues

that, like the choice to identify as a member of the Demo-

cratic Party, the choice to endorse another candidate is

simply a means of expressing his political views. We

disagree. An endorsement is a different form of speech

that serves a purpose distinct from the speech at issue in

White I and in the party identification rule discussed above.

Accordingly, we believe that it should be subject to a

distinct analysis. In keeping with a long line of Supreme

No. 09-1713 17

Court precedent determining the rights of government

employees going back to at least Ex Parte Curtis, 106 U.S.

371 (1882), a balancing approach, not strict scrutiny, is

the appropriate method of evaluating the endorsement

rule.

While the First Amendment “has its fullest and most

urgent application to speech uttered during a campaign

for political office,” Citizens United, 130 S. Ct. at 898

(citing Eu v. San Francisco County Democratic Cent. Comm.,

489 U.S. 214, 223 (1989) (internal quotation omitted)); see

also White I, 536 U.S. at 774 (noting that “speech about the

qualifications of candidates for public office” is “at the

core of our First Amendment freedoms”), a public en-

dorsement does not fit neatly in that category. Endorse-

ments are not simply a mode of announcing a judge’s

views on an issue, or a shorthand for that view. In fact,

the American Bar Association model code from which

the rule is derived justifies the restriction on endorse-

ment based on the danger of “abusing the prestige of

judicial office to advance the interests of others.” Model

Code of Judicial Conduct R. 4.1 cmt. [4] (2007). The Com-

mission identifies its interest in the rule as an attempt to

preserve the appearance of impartiality in the judiciary.

Appellant’s Br. at 36.

While an interest in the impartiality and perceived

impartiality of the judiciary does not justify forbidding

judges from identifying as members of political parties, a

public endorsement is not the same type of campaign

speech targeted by the impermissible rule against party

affiliation in this case or the impermissible rule against

18 No. 09-1713

talking about legal issues the Supreme Court struck down

in White I. As Judge Siefert notes, “[e]ndorsements pri-

marily benefit the endorsee, not the endorser” and en-

dorsements may be exchanged between political actors

on a quid pro quo basis. Appellee’s Br. at 37 & n.11. This

amounts to a concession that offering an endorsement

is less a judge’s communication about his qualifications

and beliefs than an effort to affect a separate political

campaign, or even more problematically, assume a role

as political powerbroker.

This distance between an endorsement and speech

about a judge’s own campaign justifies a more deferential

approach to government prohibition of these endorse-

ments. See Letter Carriers, 413 U.S. at 556; United Pub.

Workers of Am. v. Mitchell, 330 U.S. 75, 99 (1947); see also

Biller v. U.S. Merit Sys. Prot. Bd., 863 F.2d 1079, 1089 (2d Cir.

1988) (noting that the Supreme Court has drawn a

careful line between “partisan political activities” and

“mere expressions of views”). When judges are speaking

as judges, and trading on the prestige of their office to

advance other political ends, a state has an obligation to

regulate their behavior. We thus see a dividing line be-

tween the party affiliation rule, which impermissibly

bars protected speech about the judge’s own campaign,

and the public endorsement rule, which addresses a

judge’s entry into the political arena on behalf of his

partisan comrades. See Citizens United, 130 S. Ct. at

899 (noting that while political speech restrictions are

subject to strict scrutiny, “a narrow class of speech restric-

tions” are constitutionally permissible if “based on an

interest in allowing governmental entities to perform

No. 09-1713 19

their functons.”). We note that Citizens United, even as it

broadly prohibited restrictions on “political speech,”

reconfirmed the validity of the Letter Carriers line of

cases, which specifically targeted political activity by

government employees. Id. And we reiterate that the

Supreme Court’s holding in White I does not neces-

sarily forbid any regulation of a judge’s speech. In fact,

Justice Kennedy’s concurrence indicates just the oppo-

site. Furthermore, unlike restrictions designed, for exam-

ple, to regulate federal employees’ political activity,

restrictions on judicial speech may, in some circum-

stances, be required by the Due Process Clause. This

provides a state with a sufficient basis for restricting

certain suspect categories of judicial speech, even political

speech. The only question is whether a ban on public

endorsements serves this state interest.

Judge Siefert argues that judges are different from

“employees” because they are more akin to legislative

actors who are “ultimately accountable to the voters.” See

Jenevien v. Willing, 493 F.3d 551, 558 (5th Cir. 2007). How-

ever, this conception of a judge’s role is improperly

limited. The Hatch Act, as considered in Letter Carriers,

was not confined to low-level bureaucrats, but covered

the entire executive branch of the federal government,

with specific exemptions for the President, Vice President,

and “specified officials in policy-making positions.”

Letter Carriers, 413 U.S. at 561. While Wisconsin judges

receive job evaluations from the voting public, they are

employed in the essential day-to-day task of operating a

judicial system that must not only be fair and impartial,

but must also appear to the public to be fair and impar-

20 No. 09-1713

tial. To the extent that Wisconsin chooses to restrict those

employed to perform important judicial functions from

being in the business of trading political endorsements,

important due process interests are served.

Furthermore, while Garcetti, Connick, Letter Carriers, and

Pickering all concern public employees, the ability of the

government to regulate the speech of the employees in

those cases is not solely dependent on its authority as

an employer. See Connick, 461 U.S. at 143-44 (tracing the

development of the law in this area). Instead, by the time

it decided Pickering, the Supreme Court had recognized

that the doctrine that the government was allowed to

subject its employees “to any conditions, regardless of

how unreasonable” had been “uniformly rejected.”

Pickering, 391 U.S. at 568 (citation omitted). “At the same

time it cannot be gainsaid that the State has interests as

an employer in regulating the speech of its employees

that differ significantly from those it possesses in con-

nection with regulation of the speech of the citizenry

in general. The problem in any case is to arrive at a

balance between the interests of the [employee], as a

citizen, in commenting upon matters of public concern

and the interest of the State, as an employer, in pro-

moting the efficiency of the public services it performs

through its employees.” Id.; see also Mitchell, 330 U.S. at 96

(“Again this Court must balance the extent of the guaran-

tees of freedom against a congressional enactment to

protect a democratic society against the supposed evil

of political partisanship by classified employees of the

government.”). The rationale behind government restric-

tion identified in Pickering, therefore, is related both to

No. 09-1713 21

the government’s power as an employer and its duty

to promote the efficiency of the public services it per-

forms. Here, we emphasize again, we are not con-

cerned merely with the efficiency of those services, but

that the work of the judiciary conforms with the due

process requirements of the Constitution; this tips the

balance even more firmly in favor of the government

regulation.

The observation that elected judges are “ultimately

accountable to the voters” seems irrelevant to the due

process issue. A judge must also be accountable to her

responsibilities under the Fourteenth Amendment. It is

small comfort for a litigant who takes her case to state

court to know that while her trial was unfair, the judge

would eventually lose an election, especially if that

litigant were unable to muster the resources to combat

a well-financed, corrupt judge around election time.

As Justice Kennedy pointed out in his concurrence in

White I, state rules fill the gap between elections in order

to develop the fair jurists to whom each litigant is enti-

tled. White I, 536 U.S. at 794 (Kennedy, J., concurring).

So, as in Pickering, we have to find the balance between

the state’s interest and the judge’s. Under the Pickering

approach, narrow tailoring is not the requirement; the

fit between state interest and regulation need not be so

exact. Instead, the state’s interest must be weighed

against the employee’s interest in speaking. Pickering,

391 U.S. at 568; Bridges v. Gilbert, 557 F.3d 541, 549 (7th

Cir. 2009). And the state’s interest in the endorsement

regulation is a weighty one. Due process requires both

22 No. 09-1713

fairness and the appearance of fairness in the tribunal.

“[T]o perform its high function in the best way, ‘justice

must satisfy the appearance of justice.’ ” Murchison, 349

U.S. at 136 (citing Offutt v. United States, 348 U.S. 11, 14

(1954)). The Commission’s concern is that judges who

“publicly endorse or speak on behalf of [a party’s] candi-

dates or platforms” undermine this appearance of impar-

tiality.

At the same time, the constitutional protection in a

political endorsement is tempered by the limited com-

municative value of such an endorsement. Judge Siefert

concedes that endorsements may be less about communi-

cating one’s qualifications for office than bolstering

another politician’s chances for office. Appellee’s Br. at

37 & n.11. While White I teaches us that a judge who

takes no side on legal issues is not desirable, a judge

who takes no part in political machinations is.

The Conference of Chief Justices, as amicus, points to

the same quid pro quo concerns conceded by Judge

Siefert to justify the endorsement ban. “Without this

rule, judicial candidates and judges-elect could elicit

promises from elected officials, including local prosecutors

and attorneys general, in exchange for their endorse-

ment.” Br. of Conf. of Chief Justices, amicus, at 23. The

Commission justifies its interest in the ban based on the

danger that parties whom the judge has endorsed may

appear in the judge’s court, and argues that the risk of

bias is not mitigated by the remedy of recusal, due to both

the volume of litigation involving the government in

Wisconsin and the number of small circuit courts in

No. 09-1713 23

Wisconsin, where recusal would be impracticable. Both

the Commission’s and the Chief Justices’ concerns are

valid. Any suggestion that the rule should only

forbid Judge Siefert from making endorsements while

identifying himself as “Judge” is dubious (he would be

prohibited from using his title anyway by SCR 60.03(2));

the Commission is entitled to believe that simply

removing the honorific “judge” will not conceal Siefert’s

true identity from the public.

Judge Siefert, arguing for a strict scrutiny standard,

suggests that the availability of recusal, a less restric-

tive alternative to the ban on endorsements, dooms the

prohibition. The example Judge Siefert uses to dispute

the Commission’s argument that recusal is too onerous

for some of its courts—his endorsement of President

Obama—is a particularly good example of why strict

scrutiny is the inappropriate inquiry. The value of that

endorsement to the President would be directly

congruent to Judge Siefert’s status in the community, the

publicity his endorsement would engender, and the

narrowness of the margin in public support for the Presi-

dent. While all of these factors enhance the value of the

endorsement, they similarly enhance its problematic

nature. A local judge who tips the outcome of a close

election in a politician’s favor would necessarily be a

powerful political actor, and thus call into question the

impartiality of the court. Conversely, if Judge

Siefert’s public endorsement carried no weight, why

preserve his right to make this public endorsement by

jeopardizing the efficiency of Wisconsin’s courts? See

Broadrick, 413 U.S. at 613 (“Application of the overbreadth

24 No. 09-1713

doctrine in this manner is, manifestly, strong medicine.

It has been employed by the Court sparingly and only as

a last resort.”). Once we accept that public endorse-

ments are not the type of speech contemplated in White I,

our task is to balance the value of the rule against the

value of the communication. The concerns the Com-

mission and its amici articulated also speak to a broader

concern that freely traded public endorsements have the

potential to put judges at the fulcrum of local party

politics, blessing and disposing of candidates’ political

futures. Given that Wisconsin’s interest in preventing its

judges’ participation in politics unrelated to their cam-

paigns is justified based on its obligations under the Due

Process Clause, as well on its obligation to prevent the

appearance of bias from creeping into its judiciary, and

that the endorsement restriction does not infringe on

a judge’s ability to inform the electorate of his qualifica-

tions and beliefs, the regulation is permissible.

We note that the rule only bans endorsements in

partisan elections. Wisconsin also holds nonpartisan

elections for judges, as well as the state superintendent

of public education, county board members, county

executives, and municipal and school district officers.

Wis. Blue Book 884; see Wis. Stat. §§ 5.58, 5.60. According

to the text of the rule (“No judge or candidate for

judicial office . . . may publicly endorse or speak on

behalf of [a political party’s] candidates or platforms”),

endorsements in these nonpartisan elections may be

freely given. Were we to consider this provision under

strict scrutiny, this underinclusiveness could be fatal to

the rule’s constitutionality.

No. 09-1713 25

But, because we are applying a balancing test, the

question we ask is whether the exception for nonpartisan

elections so weakens the ban (and therefore the state’s

asserted interest in enforcing it) that the scales tip in

favor of the plaintiff’s right to speak. See SEIU, Local 3

v. Municipality of Mt. Lebanon, 446 F.3d 419, 425 (3d Cir.

2006) (“[T]o the extent that the [regulation] is not

tailored to the [state’s] stated interest, there is a com-

mensurate reduction in the [state’s] interest in its en-

forcement.” (quotation omitted)). We think it does not

for two reasons.

First, the Commission justifies the ban based on the

onerous nature of recusal in the case where a judge en-

dorses a prosecutor or sheriff who frequently appears in

front of the court. None of the nonpartisan officials

appear as frequently before the court as law enforcement

officials. Of these nonpartisan officials, only judges are

necessarily lawyers, and the frequency with which

a private practitioner appears before a court pales in

comparison with prosecutors and sheriffs who are in-

volved in litigation nearly every day. Even nonpartisan

candidates that may come before the court as part of a

suit against their institution (for instance, school board

members) will not appear as frequently before the court

as the partisan law enforcement officials that the ban

reaches.

Second, the difficulty of recusal is but one factor in

favor of the ban; the other is Wisconsin’s interest in

preventing judges from becoming party bosses or power-

brokers. Wisconsin has a justified interest in having its

26 No. 09-1713

judges act and appear judicial rather than as political

authorities. This interest is directly implicated by endorse-

ments in partisan elections and much less so, if at all,

in nonpartisan elections. In a nonpartisan election, an

endorsement connotes the quality of one candidate

among several. In a partisan election, an endorsement

can still mean an assessment of the quality of the

endorsed candidate, but it also carries implications that

the endorsement is given because of party affiliation; in

other words, it suggests that the political party of the

endorsing judge is behind the candidate. In that sense,

the judge becomes a spokesperson for the party. The

state’s interest in preventing partisan endorsements, then,

is appropriately given more weight than nonpartisan

endorsements.

Our treatment of the endorsement prohibition is based

on the claims that Judge Siefert, an incumbent, brings.

This is not the appropriate case to address the issue of

regulations for judicial candidates who are not judges.

Their potential role on a court or the impact that such

endorsements could have on a judicial election as a

whole may justify the type of regulation we have here,

but that is for another day. United States v. Wurzbach, 280

U.S. 396, 399 (1930) (“[I]f there is any difficulty, which

we are far from intimating, it will be time enough to

consider it when raised by some one whom it concerns.”).

Wisconsin has an interest in regulating the non-

campaign political activities of its judges, and prohibiting

public endorsements serves this interest.

No. 09-1713 27

C. SCR 60.06(4): Personal Solicitation

The final portion of the Wisconsin Judicial Code of

Conduct at issue here is the ban on the personal solicita-

tion of contributions by judges or judicial candidates.

SCR 60.06(4) allows a judge to set up a finance com-

mittee to raise campaign contributions, serve on that

committee, and appear at fundraising events. The canon

prohibits judges from directly soliciting or accepting

contributions. Finally, judges are admonished to avoid

“direct involvement” in their campaign’s fundraising

efforts, although no particular level of involvement is

expressly forbidden.

At heart, the solicitation ban is a campaign finance

regulation. As such, it is reviewed under the framework

set forth in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).

See also Stretton v. Disciplinary Bd. of Supreme Ct. of

Penn., 944 F.2d 137, 145-46 (3d Cir. 1991) (a pre-White I

case upholding Pennsylvania’s personal solicitation ban

under a deferential standard). In Buckley, the Supreme

Court recognized a compelling state interest in pre-

venting corruption or the appearance of corruption in

elections through some campaign finance regulation. Id.

at 26-27; see also Citizens United, 130 S. Ct. at 908. The

Court reasoned that restrictions on raising funds were

typically less burdensome to speech than restrictions on

spending funds, and thus created a two-tiered scheme

of review for campaign finance regulation. Buckley, 424

U.S. at 20-21. Under Buckley, restrictions on spending by

candidates and parties is reviewed with strict scrutiny,

while restrictions on contributions are reviewed under

28 No. 09-1713

less rigorous “closely drawn” scrutiny. Id. at 25. We note

that Citizens United, rather than overruling Buckley,

noted and rein forced the distinction between

independent expenditures on behalf of candidates and

direct contributions to candidates. Citizens United, 130

S. Ct. at 909-11; see also Richard M. Esenberg, The Lonely

Death of Public Campaign Financing, 33 Harv. J.L. & Pub.

Pol’y 283, 290-92 (2010). Since we are dealing with reg-

ulation of campaign contributions, we therefore pro-

ceed with the analysis under Buckley.

Because the direct solicitation ban does not restrict the

amount or manner in which a judicial candidate can

spend money on his or her campaign, we apply closely

drawn scrutiny. This is consistent with the approach

the Supreme Court took in analyzing the various solicita-

tion bans in the Bipartisan Campaign Finance Reform

Act. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 136-

38 & n.40 (2003), overruled in part on other grounds by

Citizens United, 130 S. Ct. at 913; see also id. at 177, 181-82.

But see id. at 314 (Kennedy, J., concurring in part in the

judgment and dissenting in part) (applying strict

scrutiny to solicitation ban); White II, 416 F.3d at 765-66

(applying strict scrutiny to solicitation ban without dis-

cussion of McConnell). We note, however, that even if

strict scrutiny applied, a solicitation ban may still

survive if it is narrowly tailored to prevent corruption

or the appearance of corruption. See McConnell, 540 U.S.

at 314 (Kennedy, J., concurring in part in the judgment

and dissenting in part) (concluding that the Federal

Election Campaign Act § 323(e), which prohibits federal

candidates from soliciting soft-money contributions,

No. 09-1713 29

survives strict scrutiny); White II, 416 F.3d at 765-66

(suggesting that portion of Minnesota’s solicitation ban

that prohibits judges from knowing the identity of contri-

butors or non-contributors would survive strict scrutiny).

We believe it survives under either standard. But see

Weaver v. Bonner, 309 F.3d 1312, 1322-23 (11th Cir. 2002)

(striking down personal solicitation ban after applying

strict scrutiny).

The Commission suggests that this ban ensures that

“no person feel directly or indirectly coerced by the

presence of judges to contribute funds to judicial cam-

paigns,” Order No. 00-07 at 11 (Abrahamson, C.J., con-

curring), and eliminates the potential bias or appearance

of bias that would accompany lawyers who frequently

appear before a judge being personally solicited for

campaign contributions. Siefert argues that the solicita-

tion ban does not serve the impartiality interest as

defined in White I and that the interest advanced by the

state in protecting potential donors from coercion is not

one that we should recognize as compelling.

Wisconsin’s personal solicitation ban serves the anti-

corruption rationale articulated in Buckley and acts to

preserve judicial impartiality.5 A contribution given

5

These two interests are closely linked and may be best

understood as different ways of stating the same concern. Cf.

White II, 416 F.3d at 769 (Gibson, J., dissenting) (“ ‘Open-minded-

ness,’ in Justice Scalia’s terminology, is in reality simply a

facet of the anti-corruption interest that was recognized

(continued...)

30 No. 09-1713

directly to a judge, in response to a judge’s personal

solicitation of that contribution, carries with it both a

greater potential for a quid pro quo and a greater ap-

pearance of a quid pro quo than a contribution given to

the judge’s campaign committee at the request of

someone other than the judge, or in response to a mass

mailing sent above the judge’s signature. In White II,

for example, the Eighth Circuit recognized that a ban

prohibiting “candidates, who may be elected judges,

from directly soliciting money from individuals who

may come before them certainly addresses a compelling

state interest in impartiality as to parties to a particular

case,” 416 F.3d at 765, but concluded that prohibiting a

candidate from personally signing a solicitation letter

or making a blanket address to a large group does not

advance that interest, id. at 765-66. Similarly, while we

decline to recognize here a compelling state interest

in protecting potential contributors from feeling “co-

erced,” we note that the perceived coerciveness of direct

solicitations is closely related to their potential impact

on impartiality.6 A direct solicitation closely links the

5

(...continued)

in Buckley v. Valeo and subsequent campaign finance

cases.”(citations omitted)).

6

Because we do not adopt the “coercion” rationale to

support SCR 60.06(4), we need not reach Siefert’s argument

that the direct solicitation ban is significantly underinclusive

because it does not apply to candidates for legislative office.

In any event, this argument misapprehends the respective

(continued...)

No. 09-1713 31

quid—avoiding the judge’s future disfavor—to the

quo—the contribution. We do not mean to suggest that

judges who directly solicit contributions are necessarily

behaving inappropriately, but the appearance of and

potential for impropriety is significantly greater when

judges directly solicit contributions than when they

raise money by other means.

The question remains whether the solicitation ban

hews closely enough to the anti-corruption rationale

that purportedly justifies it. Wisconsin allows judges to

serve on their own finance committees, and while it

directs them to avoid involvement with the committee’s

fundraising efforts, it does not specifically prohibit

them from reviewing lists of contributors. Cf. White II,

416 F.3d at 766 (concluding that where judicial canon

prohibited judges from knowing the identities of con-

tributors and non-contributors, additional restrictions

on blanket solicitations to large groups were unconstitu-

tional). Wisconsin also allows judges to appear at their

own fundraising events, where they will come into

6

(...continued)

roles of legislators and judges. Legislators are not expected to

be impartial; indeed, they are elected to advance the

policies advocated by particular political parties, interest

groups, or individuals. Judges, on the other hand, must be

impartial toward the parties and lawyers who appear before

them. In addition, legislators can only act with the support

of their colleagues. Judges—particularly trial court judges—

exercise wide and largely unreviewable discretion over

discrete cases involving specific parties and lawyers.

32 No. 09-1713

contact with people who they will likely presume are

contributors. Finally, the ban reaches solicitations

that do not implicate the risk of a quid pro quo, such

as solicitations directed at family members.

We conclude that the solicitation ban is drawn

closely enough to the state’s interest in preserving impar-

tiality and preventing corruption to be constitutional.

The fact that a judge might become aware of who has or

has not contributed to his campaign does not fatally

undercut the state’s interest in the ban. As discussed

earlier, the personal solicitation itself presents the

greatest danger to impartiality and its appearance. Like

SCR 60.06(4), the solicitation ban at issue in McConnell

did not prohibit officeholders from becoming aware of

soft-money contributions and contained an exception

for fundraising events. See 2 U.S.C. § 441i(e) (codifying

FECA § 323(e)). Finally, to the extent that the ban affects,

at the margins, some solicitations that do not pose a risk

to impartiality, that impact is not fatal to the ban. Just

as the state may enact a contribution limit, rather than

ask of each individual contribution whether it poses the

risk of corruption, the state may enact a ban on direct

solicitations, a ban tailored to the specific behavior that

poses the greatest risk. Cf. Buckley, 424 U.S. at 26-28.

Moreover, the ban’s effect on innocuous contributions is

small because the judge’s campaign committee remains

free to solicit those individuals. And unlike the partisan

affiliation and endorsement bans, there is no reasonable,

less restrictive means available here. It is an unfortunate

reality of judicial elections that judicial campaigns are

often largely funded by lawyers, many of whom

No. 09-1713 33

will appear before the candidate who wins. It would be

unworkable for judges to recuse themselves in every

case that involved a lawyer whom they had previously

solicited for a contribution. Because the ban on direct

solicitation of contributions by judicial candidates

prevents corruption and preserves impartiality without

impairing more speech than is necessary, we reverse

the district court’s decision on SCR 60.06(4).

III. Conclusion

For the foregoing reasons, we A FFIRM the district court’s

judgment in favor of Siefert with respect to the party

affiliation ban, SCR 60.06(2)(b)1, but R EVERSE the dis-

trict court’s judgment with respect to the public endorse-

ment and personal solicitation bans, SCR 60.06(2)(b)4

and SCR 60.06(4).

R OVNER , Circuit Judge, dissenting in part. Protecting

judicial integrity is a government interest of highest

magnitude, as is protecting the rights guaranteed by

the First Amendment. Reconciling these two competing

interests is no small feat, and when evaluating the

party membership restrictions in Section II.A and the

personal solicitation restriction in Section II.C, I believe

34 No. 09-1713

the majority successfully navigates the competing con-

cerns. As for the ban on endorsements of partisan candi-

dates, the majority and I begin at the same starting

point—with the notion that endorsements of candidates

in political elections are troubling and have the potential

to compromise judicial impartiality. I part ways with the

majority, however, where it applies the balancing test

from Pickering and Connick to the endorsement ban.

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will

County, Ill., 391 U.S. 563, 568 (1968); Connick v. Myers, 461

U.S. 138, 142 (1983). Because I believe this is the wrong test

to apply, I respectfully dissent.

Laws and regulations that restrict speech on the basis

of content are subject to the high hurdle of the strict

scrutiny test. United States v. Playboy Entm’t Group, Inc.,

529 U.S. 803, 813 (2000). Such laws are “presumptively

invalid, and the Government bears the burden to rebut

that presumption.” United States v. Stevens, 130 S. Ct.

1577, 1584 (2010) (internal citations omitted); Playboy

Entm’t Group, 529 U.S. at 813, 817. In addition, speech about

the qualifications of candidates for public office is at the

core of First Amendment freedoms and is thus also strictly

scrutinized. Republican Party of Minn. v. White, 536 U.S.

765, 774, 781 (2002); Eu v. San Francisco County Demo-

cratic Cent. Comm., 489 U.S. 214, 222-23 (1989). The law

presumes that these intrusions on First Amendment rights

are invalid and shifts the burden of proof to the govern-

ment to demonstrate that these regulations are narrowly

tailored to serve a compelling government interest.

Stevens, 130 S. Ct. at 1584; Eu, 489 U.S. at 222. There

could be no clearer example of a restriction that is

No. 09-1713 35

both content-based and that burdens speech regarding

qualifications for office than the one at issue here: Wiscon-

sin Supreme Court Rule 60.06(2)(b)4 states that no

judge or candidate for judicial office may “[p]ublicly

endorse or speak on behalf of [a party’s] candidates or

platforms.” SCR 60.06(2)(b)4. The majority concedes

that under a strict scrutiny analysis, the regulation at

issue here would fail. Supra at 24. Rather than reach

that unpalatable result, however, it has manufactured a

new balancing test not heretofore applied to the First

Amendment rights of elected judges.

It is true, of course, that some forms of speech fall out-

side the protections of the First Amendment, including

obscenity, defamation, fraud, incitement, and speech

integral to criminal conduct. See Stevens, 130 S. Ct. at

1584. And in the case of public employees, the Supreme

Court has relaxed the scrutiny it applies to regulation

of government employee speech, holding that a public

employee’s right to speak on matters of public concern

must be balanced against the government’s need for

efficient operation of government functions. Garcetti v.

Ceballos, 547 U.S. 410, 418-19 (2006); Connick, 461 U.S. at

142; Pickering, 391 U.S. at 568. Neither this court nor the

Supreme Court, however, has ever held that these deci-

sions limiting the speech of public employees can be

applied to elected officials’ speech, including the speech

of elected judges.

In the seminal case on free speech and judicial codes

of conduct, the Supreme Court applied strict scrutiny

in evaluating the challenged provisions of Minnesota’s

36 No. 09-1713

Code of Judicial Conduct. White, 536 U.S. at 774. Although

the White decision considered the rights of candidates

seeking judicial office as opposed to those already

holding office, the language of the decision reflects two

important principles that apply to the case before us

today—the Court’s recognition that political speech is

highly protected and that content-based restrictions

must be viewed most skeptically. Id. The court in White

stated,

the notion that the special context of electioneering

justifies an abridgement of the right to speak out

on disputed issues sets our First Amendment

jurisprudence on its head. Debate on the qualifica-

tions of candidates is at the core of our electoral

process and of the First Amendment freedoms,

not at the edges. The role that elected officials

play in our society makes it all the more impera-

tive that they be allowed freely to express them-

selves on matters of current public importance.

Id. at 781 (internal citations omitted) (emphasis in original).

In White, it was undisputed and uncontroversial that

the court should apply strict scrutiny in evaluating the

content-based restrictions of the canons of judicial con-

duct. Id. at 774. Even the two dissenting opinions, which

vigorously defended the particular speech restrictions

on judges, did so while applying strict scrutiny. See White,

536 U.S. at 800 (Stevens, J., dissenting) (“Minnesota has a

compelling interest in sanctioning such statements.”); Id.

at 817 (Ginsburg, J., dissenting) (“In addition to pro-

tecting litigants’ due process rights, the parties in this

No. 09-1713 37

case further agree, the pledges or promises clause

advances another compelling state interest: preserving

the public’s confidence in the integrity and impartiality

of its judiciary.”). In short, both the majority and dissent in

White applied strict scrutiny to a content-based speech

prohibition for judicial candidates.1

Nevertheless, as Justice Kennedy noted in his concur-

rence, the White decision left open the question as to

whether “the rationale of Pickering and Connick could

be extended to allow a general speech restriction

on sitting judges—regardless of whether they are cam-

paigning—in order to promote the efficient administra-

tion of justice. . . .” White, 536 U.S. at 796 (internal cita-

tions omitted).

1

In his concurrence, Justice Kennedy noted that he would

go further and hold that “content-based speech restrictions

that do not fall within any traditional exception should be

invalidated without inquiry into narrow tailoring or com-

pelling government interests. The speech at issue here does

not come within any of the exceptions to the First Amendment

recognized by the Court. Here, a law is directed to speech

alone where the speech in question is not obscene, not defama-

tory, not words tantamount to an act otherwise criminal, not

an impairment of some other constitutional right, not an

incitement to lawless action, and not calculated or likely to

bring about imminent harm the State has the substantive

power to prevent. No further inquiry is necessary to reject

the State’s argument that the statute should be upheld.”

White, 536 U.S. at 792-93 (Kennedy, J., concurring).

38 No. 09-1713

Although the White court left the question unanswered,

that opinion and others provide compelling support for

the proposition that strict scrutiny is the proper test for

evaluating restraints on an elected judge’s speech. The

Supreme Court has long found the speech of elected

officials to be as protected as that of ordinary citizens. In

Bond, the Supreme Court held that the State of Georgia

could not exclude a state representative from member-

ship in the legislature based on his criticism of the

Vietnam War. Bond v. Floyd, 385 U.S. 116, 133 (1966). The

Court specifically noted that the interest of the public

in hearing all sides of a public issue is advanced by ex-

tending the same First Amendment protections to legisla-

tors as to ordinary citizens. Id. at 136. The Court later

held the same for a sheriff who questioned the motiva-

tions of a judge’s charge to a grand jury. The Court rea-

soned that “the role that elected officials play in our

society makes it all the more imperative that they be

allowed freely to express themselves on matters of

current public importance.” Wood v. Georgia, 370 U.S. 375,

395 (1962). Forty years later, a majority of the Supreme

Court repeated this same statement in evaluating the

restrictions imposed by a canon of judicial conduct. White,

536 U.S. at 781-82. After reviewing White, and its analyses

of these earlier cases, the Fifth Circuit concluded that

strict scrutiny was the appropriate test for evaluating a

state’s interest in suppressing a sitting judge’s speech.

Jenevein v. Willing, 493 F.3d 551, 557-58 (5th Cir. 2007).

In contrast, non-elected employees, like those covered

by the Hatch Act, are subject to a test which balances the

interests of the employee as a citizen, in commenting

No. 09-1713 39

upon matters of public concern, against the interest of

the government, as an employer, in promoting the effi-

ciency of the public services it performs through its

employees. See U.S. Civil Serv. Comm'n v. Nat'l Assoc. of

Letter Carriers, 413 U.S. 548, 561 (1973). The Hatch Act

restricts the speech of government employees by pro-

hibiting them from taking an active part in political

management or political campaigns, but notably

exempts the two elected executive branch employees, the

president and vice president, from coverage. 5 U.S.C.

§ 7322(1); See also Letter Carriers, 413 U.S. at 561. In sum,

no Supreme Court decision or Seventh Circuit case has

applied a balancing test to the speech of elected officials.

It would be folly, of course, to ignore the reality that

elected judges are different from elected legislators and

executives. “Legislative and executive officials act on

behalf of the voters who placed them in office; judges

represent the Law.” White, 536 U.S. at 803 (Ginsburg,

J., dissenting) (internal citations omitted). See also

Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 228 (7th

Cir. 1993) (“Judges remain different from legislators

and executive officials, even when all are elected, in

ways that bear on the strength of the state’s interest in

restricting their freedom of speech.”).

This distinction, however, does not warrant aban-

doning a strict scrutiny analysis of content-based regula-

tions of speech about the political qualifications of candi-

dates for elected office. Content-based regulations are,

after all, some of the most reviled by the First Amend-

ment and election speech among the most protected.

40 No. 09-1713

There is no doubt that the due process rights guaranteed

by the Fourteenth Amendment are equally compelling,

but we need not abandon well-settled First Amendment

jurisprudence and set aside strict scrutiny to protect due

process, as the majority claims. Rather, the solution is

to apply strict scrutiny but give proper weight to the

exceedingly compelling interest the state has in ensuring

an impartial and fair judiciary. See id. at 228 (noting that

the fact that elected judges are different from elected

legislators and executive officials bears on the strength

of the state’s interest in restricting their freedom.). See

also White, 536 U.S. at 783 (“we neither assert nor

imply that the First Amendment requires campaigns for

judicial office to sound the same as those for legislative

office.”). In evaluating a restraint on judge’s speech

under a strict scrutiny analysis, a court must consider

its hefty obligation to provide litigants with a fair

adjudicative proceeding by an impartial and disin-

terested tribunal—a right guaranteed by the Due Process

Clause of the Fourteenth Amendment, as well as its

obligation to preserve public confidence in the integrity

and impartiality of the judiciary. See White, 536 U.S. at

813, 817 (Ginsburg, J., dissenting).

Furthermore, although elected judges are not the same

as elected legislators and executives, they are also not

entirely like judges appointed for life or for fixed

terms—immune from the influence of popular opinion.

As Justice Scalia pointed out in White, a judge contem-

plating releasing a notorious terrorist is well aware that

she faces the pressure of being voted out of office come

No. 09-1713 41

the next election cycle. Id. at 782. Thus, in some limited

sense, elected judges, for better or for worse, know that

they serve at the pleasure of the public. And although

a state is free to establish any constitutional system it

wishes to populate its benches, states that choose to

elect judges have made a particular decision about the

role of the public in the selection of judges.

Our federal Constitution, of course, provides for ap-

pointment of judges for life. As Justice O’Connor

recounted in White, the first twenty-nine states did not

use elections for selecting judges. White, 536 U.S. at 791

(O’Connor, J., concurring). In the 1830’s and 1850’s as

part of the Jacksonian movement toward greater pop-

ular control of public office, many states turned from ap-

pointing judges to popular elections. Id. Thirty-one states

have turned from non-electoral systems to popular elec-

tions. Id. at 792. There may be many reasons why a

state opts to elect judges, but such a decision reflects,

at least in part, a policy decision that to the extent that

judges have any discretion to mold the law—and of

course they do—the people should be able to have

some say in how that discretion will be used. For

example, in the area of sentencing where discretion can

be large, the public may choose to elect candidates who

are “tough on crime” or who “judge with compassion.”

The choice to elect judges may also represent an attempt

to allow the people to choose among the populace

the person they see as most fit to judge, but embedded

in this choice is most certainly some consideration

about how that candidate understands and would apply

42 No. 09-1713

the law. The decision to hold judicial elections, therefore,

may negatively impact the integrity of the judiciary in

ways that are unavoidable, see White, 536 U.S. at 782; see

also id. at 789 (O’Connor, J., concurring) (explaining

why the very practice of electing judges undermines the

interest in an impartial judiciary), but it is, nevertheless,

a legitimate choice by a state.

Having made a policy decision allowing the public to

shape the bench, a state must allow judges greater leeway

to communicate their opinions. Thus, although elected

judges are not like other elected officials, they are also

not like public employees subject to Pickering—that is,

employees who answer only to the government as em-

ployer and not to the public at large. As the majority in

White pointed out, “if the State chooses to tap the energy

and the legitimizing power of the democratic process

[in the election of judges], it must accord the participants

in that process the First Amendment rights that attach

to their roles.” White, 536 U.S. at 788. “Opposition [to

electing judges] may be well taken (it certainly had the

support of the Founders of the Federal Government), but

the First Amendment does not permit it to achieve its

goal by leaving the principle of elections in place while

preventing candidates from discussing what the elec-

tions are about.” Id. at 787-88. Endorsements are part of

that discussion in much the same way that announcing

one’s views on the legal issues of the day are—the issue

before the court in White. We are, after all, often judged

by the company we keep. There is much to say about the

utility and harm of endorsements, but because my dis-

agreement with the majority is over the level of scrutiny

No. 09-1713 43

to be applied to the regulation, I need not spill ink evalu-

ating the benefits and harms of endorsements. Most

importantly, it is important to note that applying strict

scrutiny will not mean that the speech of sitting judges

cannot be regulated more restrictively than the speech

of other elected officials; it most certainly can. The

state, after all, has an exceptionally compelling interest

in protecting the integrity of the judiciary and the due

process rights of litigants.

In short, I would apply a strict scrutiny test to the

announce clause at issue in this case. Whatever the

result may be in an ordinary case where a state passes

a blanket prohibition on endorsements by sitting judges,

the result here is made simple by the fact that

Wisconsin allows endorsements for non-partisan but not

partisan elections. As even the majority concedes, the

under-inclusiveness of the provision is fatal to the

rule’s constitutionality when applying strict scrutiny.

See White, 536 U.S. at 780.

Wisconsin has opted to allow judges to endorse candi-

dates in non-partisan elections. Such endorsements

threaten judicial fairness and the appearance of fairness

no less than endorsements in partisan elections. Lawyers

and judges who lose non-partisan judicial elections, for

example, go right back to practicing (and perhaps ap-

pearing as litigants) in the same small circuits in

Wisconsin in which they ran and were endorsed by

sitting judges. A criminal defendant prosecuted by such

an endorsed attorney will not question the fairness of

his trial any less because the prosecuting attorney ran in

44 No. 09-1713

a non-partisan rather than a partisan election. And a

judge who makes or breaks a non-partisan candidate’s

career is no less of a power broker than one who

endorses a partisan candidate. It may be true that party-

affiliated sheriffs and prosecutors appear frequently in

courtrooms, but it is also true that frequent litigators,

who are the very same lawyers who are most qualified

and most likely to run for judge, should they lose, will

go right back to litigating before those same judges

who endorsed them.

By allowing endorsements in non-partisan elections,

Wisconsin has largely eviscerated the force of any

asserted concern. A regulation that is so under-inclusive

diminishes the credibility of the government’s rationale

for restricting speech. White, 536 U.S. at 780.

It may be that the endorsement provision causes us

such unease because we expect a judge not to use her

office for personal gain—either her own or others’. In fact,

Wisconsin Supreme Court Rule 60.03(2) prohibits

improper use of the visibility and prestige of the judicial

office. Endorsements arguably use the visibility and

prestige of the judicial office in an improper manner.

Wisconsin, however, has not articulated this as its

interest and indeed cannot, as it allows endorsements in

non-partisan races.

Although I disagree with the majority about the

proper test to apply, it is likely that under different cir-

cumstances our outcome would nevertheless be the

same and I would find myself concurring in the result.

My dissent stems entirely from the unique situation

No. 09-1713 45

presented here. Wisconsin has opted to elect judges in

popular elections and has further mired those judges in

that political process by allowing them to make non-

partisan endorsements. Endorsements undermine the

integrity of the judiciary regardless of whether they

focus on partisan or non-partisan races. Once Wisconsin

greased the slope for non-partisan endorsements, it

should not have been surprised that partisan endorse-

ments could come sliding after. Wisconsin has failed to

demonstrate that its endorsement ban is narrowly

tailored to prevent the harm it asserts.

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