In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2963
T ORREY B AUER, D AVID C ERTO, and
INDIANA R IGHT TO L IFE, INC.,
Plaintiffs-Appellants,
v.
R ANDALL T. S HEPARD , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 3:08-CV-196-TS—Theresa L. Springmann, Judge.
A RGUED D ECEMBER 3, 2009—D ECIDED A UGUST 20, 2010
Before E ASTERBROOK, Chief Judge, and M ANION and
E VANS, Circuit Judges.
E ASTERBROOK, Chief Judge. The Supreme Court held
in Republican Party of Minnesota v. White, 536 U.S. 765
(2002) (White I), that elected judges, and candidates for
judicial office, have a right under the first amendment
to declare their legal views to the electorate during
their campaigns. The decision left open myriad questions
2 No. 09-2963
of implementation, and litigation has ensued across the
country in those states that give the voters some say in
choosing judges—either through direct election or by
retention votes on judges who came to office by appoint-
ment. Recently we held that Wisconsin violated the
Constitution by forbidding judges to be members of
political parties, but that rules restricting partisan
activities (such as endorsing a candidate for non-judicial
office), and personal solicitation of funds, are valid.
Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010). Today’s
appeal concerns provisions of Indiana’s Code of Judicial
Conduct. Some judges in Indiana are appointed by the
Governor but must run in retention elections. Others are
directly elected. Article VII of Indiana’s Constitution
provides the details.
I
Indiana Right to Life, Inc., sends questionnaires to
candidates for election or retention, asking recipients to
state, among other things, whether they agree with Roe
v. Wade, 410 U.S. 113 (1973), which held many forms of
abortion legislation unconstitutional, and whether they
subscribe to propositions such as: “I believe that the
unborn child is biologically human and alive and that
the right to life of human beings should be respected
at every stage of their biological development.” (The
district court’s opinion includes excerpts that convey
the gist of all nine questions.) Most recipients have
either ignored this questionnaire or told Indiana Right
to Life that they fear giving answers could jeopardize
No. 09-2963 3
their judicial careers because of provisions in the state’s
Code of Judicial Conduct.
Indiana Right to Life filed suit seeking to have these
provisions held invalid, but its suit was dismissed for
want of standing, because no person actually or poten-
tially covered by the Code was a plaintiff. Indiana Right
to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. 2007).
Indiana Right to Life then recruited a candidate for judi-
cial office (Torrey Bauer) and a sitting judge (David Certo)
as plaintiffs to join it in this new suit. The candidate
and the judge both say that they refrain from speaking
about abortion, and other controversial topics, because
they fear the prospect of sanctions under the Code. Bauer
answered the group’s 2008 questionnaire but says that
he will keep silent in the future because of the risk this
would pose to his judicial career should he be elected.
He expresses concern that his 2008 answers may come
back to haunt him should he be elected. Certo has not
answered the group’s questionnaire in any year. He, too,
says that the Code has led to silence.
While this suit was pending in the district court, Indiana
substantially amended its Code of Judicial Conduct, in
light of changes to a model code published by the Ameri-
can Bar Association. The revised Code, which took effect
on January 1, 2009, is the focus of this appeal—though
plaintiffs also want an injunction against one provision
that has been removed from the Code but was in force
when Bauer answered the 2008 questionnaire.
Plaintiffs challenge four provisions (or associated
groups of provisions) in the current Code and one provi-
4 No. 09-2963
sion in the version applicable to 2008. The first com-
prises Rules 2.10(B) and 4.1(A)(13), which forbid judges
and candidates in judicial elections to make commit-
ments that are inconsistent with the impartial per-
formance of judicial office. The parties call these rules
the “commits clauses.” Canon 5A(3)(d) of the older
Code covered similar ground but was broader; it is the
provision relevant to Bauer’s 2008 answers. The second
is Rule 2.11(A), which requires recusal when a judge’s
impartiality “might reasonably be questioned.” This the
parties call the “recusal clause.” Plaintiffs direct special
fire at subsection 2.11(A)(5), which requires recusal if
the judge “has made a public statement . . . that commits
or appears to commit the judge to reach a particular
result or rule in a particular way in the proceeding or
controversy.” This specifies a concrete consequence of
violating the commits clauses. The third group com-
prises Rule 4.1(A)(1) and (2), which limits the political
activities of Indiana’s judges (the parties call these the
“partisan-activities clauses”), and the fourth comprises
limits on fundraising set out in Rule 4.1(A)(4) and (8)
(the “solicitation clauses”).
Defendants are the members of two bodies: the Indiana
Commission on Judicial Qualifications and the Indiana
Disciplinary Commission. Some of the defendants are
judges (Randall Shepard, the lead defendant, is the
state’s Chief Justice), but they are sued in their capacity
as members of these commissions rather than as judges.
The Commission on Judicial Qualifications receives and
investigates complaints against judges and candidates
for judicial office. It has some enforcement power over
No. 09-2963 5
minor offenses and can issue public admonitions if the
subject agrees; but only the state’s Supreme Court can
remove a judge from office or impose substantial disci-
pline, and only a judicial body (such as a court of appeals)
can remove a judge from a particular case under the
recusal clause. As a practical matter, an injunction for-
bidding the Commission to bring any supposed violation
of the contested clauses to the attention of the state’s
Supreme Court would give plaintiffs the relief they
want. The Indiana Disciplinary Commission investigates
and prosecutes cases of misconduct by attorneys;
again only the state judiciary can take any significant
disciplinary action. We do not refer to the Disciplinary
Commission again; every reference to “the Commission”
is to the Indiana Commission on Judicial Qualifications.
The district court deemed moot Bauer’s challenge to
the pre-2009 version of the Code. The court concluded
that plaintiffs have standing to challenge the version
now in force and held that all of the contested provisions
are constitutional. 634 F. Supp. 2d 912 (N.D. Ind. 2009).
II
Defendants contend that plaintiffs lack standing to sue.
Standing exists when the plaintiff suffers an actual or
impending injury, no matter how small; the injury is
caused by the defendant’s acts; and a judicial decision
in the plaintiff’s favor would redress the injury. See, e.g.,
Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009);
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
102–04 (1998). Bauer and Certo have not been injured
6 No. 09-2963
yet, but the existence of a statute implies a threat to
prosecute, so pre-enforcement challenges are proper,
because a probability of future injury counts as “injury”
for the purpose of standing. See Abbott Laboratories v.
Gardner, 387 U.S. 136 (1967); Pierce v. Society of Sisters, 268
U.S. 510 (1925); Brandt v. Winnetka, No. 09-3709 (7th Cir.
July 20, 2010); 520 South Michigan Avenue Associates, Ltd.
v. Devine, 433 F.3d 961 (7th Cir. 2006). We held in Buckley
v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir.
1993), another pre-enforcement suit by a judge who
disagreed with a state’s limits on campaign speech, that
standing had been established. This case is not materially
different. Because Bauer and Certo have standing, it is
unnecessary to decide whether Indiana Right to Life
independently has standing.
The district court thought that Bauer’s challenge to
the pre-2009 Code became moot when the Code was
amended. To say that a claim is moot is to say that it is
too late for the judiciary to affect anyone’s entitlements.
With respect to Bauer’s claim, however, the suit is too
early rather than too late. It is unripe, not moot.
If Bauer should be elected in 2010 or later, the Com-
mission might open a proceeding based on his answers
in 2008, and the Indiana Supreme Court might remove
him from office or discipline him in some other fashion.
The amendment of the Code in 2009 does not eliminate
the possibility of prosecuting and punishing earlier
violations. Nor does the preliminary injunction pre-
venting implementation of former Canon 5A(3)(d),
which was in force when Bauer answered the 2008
No. 09-2963 7
questionnaire but has since been vacated. An expired or
vacated injunction does not prevent a unit of govern-
ment from punishing conduct, committed before the
vacatur, that violates its laws. See Crane v. Indiana High
School Athletic Association, 975 F.2d 1315, 1318–19 (7th
Cir. 1992); Hoskins Lumber Co. v. United States, 20 F.3d 1144
(Fed. Cir. 1994). Cf. Hampton Tree Farms, Inc. v. Yeutter,
956 F.2d 869, 871 (9th Cir. 1992) (“[O]nce an injunction
in a civil case has been invalidated, rights granted
under the injunction no longer exist and cannot be en-
forced.”). So the dispute is not moot.
But before Bauer can face any consequence for his
answers in 2008, a series of events must happen: (a) he
must be elected to the state judiciary; (b) the Commis-
sion must decide to prosecute, even though an injunc-
tion was outstanding when Bauer gave his answers, and
even though the Commission has never prosecuted any
judge who answered the questionnaire (as about 10
judges or candidates did in full in 2008; about 20 more
answered some questions); and (c) the Supreme Court of
Indiana must impose discipline. That’s too many unlikely
steps to justify constitutional adjudication. See MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007); Brandt v.
Winnetka; and Lawson v. Hill, 368 F.3d 955 (7th Cir. 2004).
Because Canon 5A(3)(d) is no longer in force, neither
Bauer nor anyone else can be “chilled” by the risk of
future punishment. When deciding what to say or avoid
today, any judge or judicial candidate looks to the
current Code, not to provisions that were abrogated at
the end of 2008. There is accordingly no need for prospec-
8 No. 09-2963
tive relief concerning pre-2009 rules. If the Commission
ever hales Bauer (or anyone else) before the Supreme Court
of Indiana on a charge of violating the former Canon
5A(3)(d), a defense based on the first amendment can
be raised and adjudicated in the regular course.
III
Siefert disposes of one set of issues in this appeal and
strongly influences another. We start with the fundraising
question.
Rule 4.1(A) of Indiana’s Code of Judicial Conduct
provides:
Except as permitted by law,* or by Rules 4.1(B),
4.1(C), 4.2, 4.3, and 4.4, a judge or a judicial candi-
date* shall not: . . .
(4) solicit funds for, pay an assessment to, or
make a contribution* to a political organiza-
tion or a candidate for public office; . . .
(8) personally solicit* or accept campaign
contributions other than through a campaign
committee authorized by Rule 4.4 . . . .
The asterisks, which are part of the Code, denote defined
terms. The definitions say that “law” includes constitu-
tions, statutes, rules, and decisional law; that “contribu-
tion” include both financial and in-kind support “which,
if obtained by the recipient otherwise, would require
a financial expenditure”; and that “personally solicit”
means “a direct request made by a judge or a judicial
candidate for financial support or in-kind services,
No. 09-2963 9
whether made by letter, telephone, or any other means
of communication.”
Siefert dealt with this provision of Wisconsin’s judicial-
ethics rules:
A judge, candidate for judicial office, or judge-elect
shall not personally solicit or accept campaign
contributions. A candidate may, however, estab-
lish a committee to solicit and accept lawful cam-
paign contributions. The committee is not pro-
hibited from soliciting and accepting lawful cam-
paign contributions from lawyers. A judge or
candidate for judicial office or judge-elect may
serve on the committee but should avoid direct
involvement with the committee’s fundraising
efforts. A judge or candidate for judicial office
or judge-elect may appear at his or her own fund-
raising events. When the committee solicits or
accepts a contribution, a judge or candidate for
judicial office should also be mindful of the re-
quirements of SCR 60.03 and 60.04(4).
Wisconsin Supreme Court Rule 60.06(4). (The language
we have quoted is from the version effective when Siefert
was decided; Rule 60.06(4) has since been amended
slightly.) The court held that this rule is consistent with
the Constitution. We invited the parties to file supple-
mental memoranda discussing Siefert’s effect on this
litigation. Indiana contends that its solicitation rules
match Wisconsin’s in all material respects and that
Siefert therefore controls. Plaintiffs acknowledge that the
rules are fundamentally the same but contend that the
10 No. 09-2963
parties’ situations differ: Judge Certo wants to raise
money from family members and former classmates at
college and law school, as well as the general public
and lawyers at large.
For the purpose of a personal-solicitation rule such as
this, the fact that the judge went to law school at the
same time as a potential donor cannot make a differ-
ence. The potential for actual or perceived mutual back
scratching, or for retaliation against attorneys who
decline to donate, discussed in Siefert, is the same
whether or not the judge knows the potential donor’s
first name. Asking family members for support poses
less of this risk—unless the judge plans to ask distant
as well as immediate relatives. Laws need not contain
exceptions for every possible situation in which the
reasons for their enactment are not present. It is the
nature of rules to be broader than necessary in some
respects. Siefert shows that Indiana’s rules are not
facially unconstitutional. Indiana may well be willing
to make exceptions for close relatives—recall that
Rule 4.1(A) begins “[e]xcept as permitted by law” and
defines “law” to include both regulations and decisional
law. Rule 3.7(A)(2) already contains one exception for
solicitations from a judge’s family. A federal court
should not assume that a state will act unreasonably.
Judge Certo should follow Indiana’s procedures for
obtaining advice with respect to contributions from
family members.
A month after we released our opinion in Siefert, the
sixth circuit concluded that a personal-solicitation rule
is unconstitutional. Carey v. Wolnitzek, 2010 U.S. App.
No. 09-2963 11
L EXIS 14367 (6th Cir. July 13, 2010). The panel in Carey
did not question the propriety of limits on in-person
solicitation, where the possibility of reward or retalia-
tion is greatest, but concluded that Kentucky’s rule is
substantially overbroad because it covers solicitation
by mass mailing. A machine-generated letter with the
judge’s machine-generated signature is not materially
different from a machine-generated letter with a cam-
paign committee’s imprimatur, the court concluded.
Certo has not made anything of the fact that the defini-
tion of “personally solicit” in Indiana’s Code includes
letters, so it is unnecessary to address the distinc-
tion drawn in Carey between in-person and written so-
licitations. A conflict among the circuits preceded
Siefert. Compare Republican Party of Minnesota v. White,
416 F.3d 738, 763–66 (8th Cir. 2005) (en banc) (White II )
(holding solicitation rules unconstitutional), and Weaver
v. Bonner, 309 F.3d 1312, 1322–23 (11th Cir. 2002) (same),
with Stretton v. Disciplinary Board, 944 F.2d 137, 144–46
(3d Cir. 1991) (holding valid a rule similar to Indiana’s).
Nothing we can do here could create harmony among
the circuits, so there is no reason to depart from the
approach taken so recently in this circuit.
Siefert also affects analysis of the partisan-activities
rules, subsections (1) and (2) of Rule 4.1(A). We repeat
the introductory clause to provide context:
Except as permitted by law,* or by Rules 4.1(B),
4.1(C), 4.2, 4.3, and 4.4, a judge or a judicial candi-
date* shall not:
(1) act as a leader in or hold an office in a
political organization;*
12 No. 09-2963
(2) make speeches on behalf of a political
organization;
(3) publicly endorse or oppose a candidate for
any public office . . . .
Siefert held that Wisconsin’s equivalent of Rule 4.1(A)(3)
is constitutional. Our plaintiffs do not challenge that
subsection, but they do challenge subsections (1) and (2).
Plaintiff Certo contends that he wants to serve as a dele-
gate at the Indiana State Republican Convention,
speak at political clubs on behalf of persons running for
judicial office as Republicans, speak to students on
behalf of the Republican Party in general, and encourage
the public at large to donate money to the Republican
Party. The Republican Party is a “political organization,”
which the Code defines as “a political party or other
group sponsored by or affiliated with a political party
or candidate, the principal purpose of which is to
further the election or appointment of candidates for
political office.”
Although Siefert did not address limits on leadership
roles in political parties or making speeches on behalf
of political organizations, the way in which it analyzed
public endorsements (see 608 F.3d at 983–88) establishes
that subsections 4.1(A)(1) and (2) are valid. White I
permits a candidate for judicial office (or retention in
office) to speak freely in support of his own election;
Siefert concluded that this does not allow a judge to use
the prestige of the office to assist other persons. That
kind of electoral activity on behalf of third parties
No. 09-2963 13
is covered, we held, by the balancing approach that
Pickering v. Board of Education, 391 U.S. 563 (1968),
adopts for speech by public employees—and by two of
Pickering’s best-known sequels, Civil Service Commission
v. Letter Carriers, 413 U.S. 548 (1973), and Broadrick v.
Oklahoma, 413 U.S. 601 (1973), which hold that the
Hatch Act, 5 U.S.C. §§ 7321–26, and comparable state
laws are compatible with the first amendment.
The Hatch Act and similar state laws limit the ability
of public employees to engage in politics. They can join
political parties, but they can’t distribute political
literature at work, hold office in political parties, or
make speeches on behalf of candidates for political
office. (Different employees are subject to different re-
strictions; the most stringent ones apply to those, such
as agents of the FBI, that Congress has thought should
be apolitical.) Siefert holds that similar limitations for
judges are valid, for three principal reasons: first, judges
no less than FBI agents must be seen as impartial if
judicial decisions are to be accepted by the public, and
participation in politics undermines the appearance of
impartiality; second, judges are not entitled to lend the
prestige of office (which after all belongs to the people,
not to the temporary occupant) to some other goal; third,
states have a compelling interest in “preventing judges
from becoming party bosses or power-brokers” (608
F.3d at 987), something that would undermine actual
impartiality, as well as its appearance. Those consider-
ations support limits on political leadership and speech-
ifying as fully as they support limits on partisan endorse-
ments (the subject of Siefert).
14 No. 09-2963
Rule 4.1(A)(2) says that judges cannot make speeches
“on behalf of” political organizations. This probably
equates to acting as a party’s representative; it is there-
fore doubtful that this rule forbids all of the activity
in which Judge Certo wishes to engage (though
Rule 4.1(A)(1) assuredly forbids him from attending a
political convention as a delegate). Kentucky’s political-
activity rule, held invalid in Carey, is much broader than
Indiana’s, forbidding a judge even to reveal his political
affiliation. (Siefert held that such a rule in Wisconsin
violates the first amendment.) To the extent there is
uncertainty about what it means to speak “on behalf of”
a political organization, Indiana provides means of clarifi-
cation. Judge Certo should use them. The Commission
already has issued several clarifying advisory opinions,
which we need not recount. For current purposes it is
enough to say that the principal applications of subsec-
tions 4.1(A)(1) and (2) are valid, which means that they
cannot be enjoined across the board. (We discuss later
how Indiana’s system of resolving marginal or other-
wise uncertain matters of application affects plaintiffs’
contention that all of the rules are unconstitutionally
vague.)
The desire to prevent judges from using the prestige
of office for other ends underlies a great deal of the
Code of Judicial Conduct for United States Judges.
Federal judges can’t endorse political candidates or
participate in fundraising, even for nonpartisan institu-
tions such as law schools. A judge can’t serve on the
board of a charitable organization if that organization
is involved in litigation—and the fact that the judge
No. 09-2963 15
plans to recuse from cases for or against the organiza-
tion does not permit him to serve on the board. The judge
cannot accept most positions on governmental panels
outside the judicial branch. These rules, and other
related ones, are in Canons 4 and 5 of the Code of
Judicial Conduct for United States Judges and are elabo-
rated in many advisory opinions. Canon 5 also forbids
a judge to act as a leader in a political organization,
make speeches “for” a political organization, and so on. If
subsections 4.1(A)(1) and (2) of Indiana’s Code are
unconstitutional, so are Canons 4 and 5 of the federal
judges’ Code. We very much doubt that White I
licenses federal and state judges to give stump speeches
for candidates running for President, senator, governor,
or mayor, or act as leaders of political parties.
Plaintiffs say that a judge who does not identify
himself as a judge when making a political speech, or
serving as an officer or delegate in a political party,
has not misused the prestige of the office and does not
imperil the public’s belief in the impartiality of the judi-
ciary. Yet the audience (or at least the reporters covering
the speech) knows who is on the bench and thus might
think that the judiciary is behind the endorsement, or
implicitly threatening retaliation against those who
do not accept the judge’s recommendation. The Court
remarked in Letter Carriers that one principal justifica-
tion for the Hatch Act is the preservation of public confi-
dence in the bureaucracy. 413 U.S. at 565. That is even
more true about rules that keep judges out of active
politics. See Caperton v. A.T. Massey Coal Co., 129 S. Ct.
2252, 2266–67 (2009). The judicial system depends on
16 No. 09-2963
its reputation for impartiality; it is public acceptance,
rather than the sword or the purse, that leads decisions
to be obeyed and averts vigilantism and civil strife.
That judges can recuse when their favored political
candidates are litigants is not an answer to this concern.
Many a case presents political issues without involving
a politician. Political platforms, and candidates, take
strong positions on health care, torts, labor relations,
crime, immigration, abortion, taxes, and a hundred
more contentious issues. Unless a judge who speaks on
behalf of a party, or serves as a party’s officer, recuses in
all of these cases—which is to say, almost every case that
comes before a court—the public would have good
reason to believe that the judge is deciding according
to the party’s platform rather than the rule of law. Al-
lowing judges to participate in politics would poison the
reputation of the whole judiciary and seriously impair
public confidence, without which the judiciary cannot
function. Preserving that confidence is a compelling
interest. No one could contemplate with equanimity
the prospect of a state’s chief justice also being the head
of a political party and doling out favors or patronage,
or deciding who runs for legislative office. States are
entitled to ensure not only that judges behave in office
with probity and dignity, but also that their conduct
makes it possible for them to serve impartially. But the
politician-judge will be disqualified so often that he will
have the equivalent of a paid vacation, while other
judges must work extra to protect litigants’ entitlement
to expeditious decisions.
No. 09-2963 17
Letter Carriers said that it is constitutional to curtail
bureaucrats’ political activity to ensure public confidence
that civil servants “administer the law in accordance
with the will of Congress, rather than in accordance with
their own or the will of a political party.” 413 U.S. at
564–65. Exactly the same can be said about judges and
the judiciary. When a state requires judges to stand for
office, it cannot insist that candidates remain silent about
why they rather than someone else should be elected.
That’s the holding of White I. But the rationale of Letter
Carriers remains, and is not undercut by White I, for
political races other than the judge’s own. Subsections
4.1(A)(1) and (2) are constitutional.
Although Wersal v. Sexton, 2010 U.S. App. L EXIS 15664
(8th Cir. July 29, 2010), recently held that Minnesota’s
equivalents of Rule 4.1(A)(3) (the no-endorsement rule)
and Rule 4.1(A)(4) and (8) (the solicitation limits) violate
the first amendment, it did not discuss (or even cite)
Pickering, Letter Carriers, or any of the Supreme Court’s
other decisions concerning restrictions on public em-
ployees’ political activities. The majority in Wersal con-
cluded that the court’s en banc decision in White II
requires the application of strict scrutiny to all ethical
rules that affect either judicial campaigns or judges’
participation in campaigns for other offices. We are
unpersuaded and shall stick with Siefert’s analysis,
which differentiates what judges can do in their own
campaigns (the subject of White I) from how judges can
participate in other persons’ campaigns (the subject
of Letter Carriers and similar decisions).
18 No. 09-2963
IV
Rules 2.10(B) and 4.1(A)(13) are the “commits clauses”:
[Rule 2.10(B)] A judge shall not, in connection with
cases, controversies, or issues that are likely to
come before the court, make pledges, promises,
or commitments that are inconsistent with the
impartial* performance of the adjudicative duties
of judicial office.
[Rule 4.1(A)] Except as permitted by law,* or by
Rules 4.1(B), 4.1(C), 4.2, 4.3, and 4.4, a judge or a
judicial candidate* shall not: . . . (13) in connection
with cases, controversies, or issues that are likely
to come before the court, make pledges, promises,
or commitments that are inconsistent with the
impartial* performance of the adjudicative duties
of judicial office.
The Code defines “impartial” as “absence of bias or
prejudice in favor of, or against, particular parties or
classes of parties, as well as maintenance of an open mind
in considering issues that may come before a judge.”
Plaintiffs Bauer and Certo say that these rules have dis-
couraged them from answering Indiana Right to Life’s
questionnaire, and the group relates that most judges
who have replied have said the same thing; only a
handful of judges and judicial candidates in Indiana
have stated their positions on all of the nine questions.
Some, perhaps many, of the state’s judges and judicial
candidates may be using the commits clauses as a
pretext to keep out of a political minefield. For no
No. 09-2963 19
matter what a person says in response to Indiana Right
to Life’s questionnaire, some readers are going to be
unhappy and will vote against the candidate as a result.
It is hard to see how judges and candidates could have
a substantial fear of adverse consequences under the
current version of Indiana’s Code. None of the nine ques-
tions calls for a “commitment” or “promise” on any
issue. A judge who answers yes to the first proposition
(“I believe that the unborn child is biologically human
and alive and that the right to life of human beings
should be respected at every stage of their biological
development”) has not committed to defying Roe v.
Wade and its sequels. The proposition concerns morals,
not conduct in office. Statements of views on moral and
legal subjects do not imply that the speaker will act in
accord with his preferences rather than the law. Every
judge enforces laws and applies judicial decisions for
which he would not have voted.
Similarly, a judge who states that he thinks Roe v. Wade
wrongly decided has not committed to disregard that
decision. Justices White and Rehnquist dissented in
Roe itself, explaining at length why they thought the
majority mistaken. But this did not commit them to any
particular outcome in a future dispute about abortion.
Many a judge dissents in one case but later follows
the majority decision on the basis of stare decisis—and
occasionally a judge who has written a decision, and
thus commits to its correctness, writes a decision over-
ruling his earlier opinion after concluding that he erred.
See, e.g., United States v. Scott, 437 U.S. 82 (1978)
(Rehnquist, J.), overruling United States v. Jenkins, 420
20 No. 09-2963
U.S. 358 (1975) (Rehnquist, J.). A judge whose mind is
open to new evidence and arguments is not “committed”
to any outcome in tomorrow’s litigation.
White I holds that judges and judicial candidates are
entitled to announce their views on legal and political
subjects that will come before them as judges. 536 U.S. at
788. That’s all Indiana Right to Life’s questionnaire asks
them to do. Defendants observe that some judges do
answer the questionnaire, and that, even under the pre-
2009 version of the Code, none has been charged by the
Commission with misconduct. Most judges and judicial
candidates have views on issues such as those the ques-
tionnaire poses, and are entitled to have them. Making
these views known does not call their impartiality into
question. “[S]ince avoiding judicial preconceptions on
legal issues is neither possible nor desirable, pretending
otherwise by attempting to preserve the ‘appearance’ of
that type of impartiality can hardly be a compelling
state interest”. Id. at 778.
Still, given the posture of this case—the suit was dis-
missed on the pleadings—we must assume that plain-
tiffs Bauer and Certo are in fear of sanctions under the
Code if they answer the questions. This fear may be
exaggerated, but if it is real (as we must assume it is), and
not irrational (it isn’t), it stifles speech. So we must
decide whether there is anything wrong with the
commits clauses. Plaintiffs say that they are unconstitu-
tional because overbroad and vague.
Plaintiffs treat as “overbroad” any law forbidding any
speech that is constitutionally protected. It is not clear to
No. 09-2963 21
us that any speech covered by the commits clauses is
constitutionally protected, as White I understands the
first amendment. How could it be permissible to “make
pledges, promises, or commitments that are inconsistent
with the impartial performance of the adjudicative
duties of judicial office”? The rule’s own category (prom-
ises “inconsistent with the impartial performance of”
judicial duties) identifies the sorts of speech that White I
thought might be curtailed. A commits clause “secures a
basic objective of the judiciary, one so basic that due
process requires it: that litigants have a right to air
their disputes before judges who have not committed to
rule against them before the opening brief is read.” Carey
at *43–44. Judges must decide on the basis of the law
and the case’s facts, not on “express . . . commitments
that they may have made to their campaign supporters
or to others.” Buckley, 997 F.2d at 227.
Although the Court held in White I that judges may
state their views on contestable and controversial
subjects—such as whether the exclusionary rule is wise
policy, or whether mandatory minimum sentences
should be repealed—it did not hold that judges may
make commitments or promises about behavior in office.
Imagine a judge or judicial candidate who said: “I will
issue a search warrant every time the police ask me to.”
That speaker is promising to defy the judicial oath of
office. Or imagine the statement: “I will always rule in
favor of the litigant whose income is lower, so that
wealth can be redistributed according to the principles of
communism.” (More plausibly, a candidate might say
that he will award damages against drug companies,
22 No. 09-2963
whether or not the drug has been negligently designed
or tested, because they charge “too much” for their prod-
ucts.) Again that person is promising to disobey the
law and disregard the litigants’ entitlements. Nothing in
White I deals with statements of this flavor, or any other
promise to act on the bench as a partisan of a political
agenda.
But it is unnecessary to decide whether some protected
speech might come within the scope of the commits
clauses. For when the Supreme Court speaks of
overbreadth, it does not mean a statute or rule that
catches the occasional protected tidbit. All rules are
overbroad in that sense. “Overbreadth” in the Supreme
Court’s jurisprudence has to do with substantial amounts
of protected speech. A law is unconstitutionally over-
broad when “a substantial number of its applications
are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449 n.6
(2008) (internal quotation marks omitted). See also, e.g.,
United States v. Stevens, 130 S. Ct. 1577, 1587 (2010). Plain-
tiffs do not seriously contend that the commits clauses
are overbroad in that sense.
Under Indiana’s language, judges and candidates can
tell the electorate not only their general stance (“tough
on crime” or “tough on drug companies”) but also their
legal conclusions (“I would have joined Justice White’s
dissent in Roe” or “the death penalty should be treated
as cruel and unusual punishment” or “I am a textualist
and will not resort to legislative history” or “I will
No. 09-2963 23
follow stare decisis” or “I am a progressive who will use
a living-constitution approach”). Judges who have an-
nounced these views, on or off the bench, sit every day
without being thought to have abandoned impartiality.
Indeed, judges who have announced legal views in ex-
ceptional detail, by writing a treatise about some sub-
ject (Weinstein on Evidence, or Martin on Bankruptcy)
have not made an improper “commitment,” even though
a litigant can look up in the treatise exactly how the
judge is apt to resolve many disputes. A judge who
promises to ignore the facts and the law to pursue his
(or his constituents’) ideas about wise policy is prob-
lematic in a way that a judge who has announced consid-
ered views on legal subjects is not. The commits clauses
condemn the former and allow the latter. That’s because
they are limited to commitments that are inconsistent
with impartial adjudication and thus differ considerably
from the rule at issue in Carey, where the sixth circuit
expressed concern that limiting all commitments on
“issues” would prevent a judicial candidate from de-
claring support for the rule of law or adherence to stare
decisis. Carey at *45–49.
As plaintiffs see things, however, the phrase “inconsis-
tent with the impartial performance of the adjudicative
duties of judicial office” saves the commits clauses
from a first amendment challenge by making them so
vague that they violate the due process clauses. For
what promises are “inconsistent with the impartial per-
formance of the adjudicative duties of judicial office”?
Neither the commits clauses nor the Code’s defini-
tions pin the meaning down. We have given a few exam-
24 No. 09-2963
ples, such as a promise to issue search warrants without
bothering to read the affidavits, but the principle is
clear only in these extremes. A candidate who says that
he will never let a prisoner off on a “technicality” could
be promising to ignore the fourth amendment (if in his
view the rule against unreasonable searches and seizures
is a “technicality”) but could mean instead only that he
plans to enforce the harmless-error and plain-error doc-
trines, see Fed. R. Crim. P. 52; Ind. R. App. P. 66(A),
under which errors that don’t impair a defendant’s sub-
stantial rights do not justify setting aside a jury’s verdict.
Context may help to disambiguate a statement, but there
is an irreducible risk that a promise may be misunder-
stood—or that the Commission and the Supreme Court
of Indiana may treat as “inconsistent with the impartial
performance of the adjudicative duties of judicial of-
fice” even the sort of statements that are squarely pro-
tected by White. We think that statements such as “judges
have been too ready to find antitrust problems with
mergers” or “mandatory minimum sentences are unjust,
and I will read those statutes narrowly” or “drunk drivers
are a menace and should be dealt with severely” or
“abortion should be freely available, and I will grant a
minor’s application for bypass of parental consent when
a statute gives me that discretion” are outside the scope
of the commits clauses. But will the Commission and the
state judiciary agree?
The best way to find out is to wait and see. The Com-
mission issues advisory opinions that reduce uncertainty,
and when the Commission brings a proceeding the
No. 09-2963 25
state judiciary will issue an opinion that makes the
rule more concrete. Plaintiffs want us to deem the law
vague by identifying situations in which state officials
might take an untenably broad reading of the commits
clauses, and then predicting that they will do so. It is far
preferable, however, and more respectful of our judicial
colleagues in Indiana, to assume that they will act
sensibly and resolve the open questions in a way that
honors candidates’ rights under the first amendment.
When a statute is accompanied by an administrative
system that can flesh out details, the due process clause
permits those details to be left to that system. Parts of the
Hatch Act are every bit as vague as the commits clauses,
but in Letter Carriers the Court held that problems
of implementation could be tackled by administra-
tive adjudication. 413 U.S. at 580. Similarly, in Parker
v. Levy, 417 U.S. 733 (1974), the Court held that an
article of the Uniform Code of Military Justice making
it a court-martial offense to engage in “conduct unbe-
coming an officer and a gentleman” is not unconstitu-
tionally vague, because military tribunals have elab-
orated on what is “unbecoming” for an officer and made
it more specific than the unadorned words. The National
Labor Relations Act is full of vague terms, and the
National Labor Relations Board has yet to make all of
them concrete, but no one supposes that the whole Act
could be chucked out. The Justices have been chary of
holding laws unconstitutional “on their face” precisely
because they have recognized that vagueness will be
reduced through a process of interpretation. See also, e.g.,
United States v. Skoien, No. 08-3770 (7th Cir. July 13, 2010)
26 No. 09-2963
(en banc), slip op. 17. Advisory opinions under the Code
of Judicial Conduct are a more appropriate procedure
than summary condemnation by a federal court before
the Commission has an opportunity to tackle the am-
biguities in the 2009 version of the Code. (Another way
to reach the same result would be via Pullman absten-
tion, see Railroad Commission v. Pullman Co., 312 U.S. 496
(1941), withholding federal decision until the state
agency has had a chance to reduce the ambiguity.)
It is not as if Indiana could make everything clear by
changing a few words. The main source of ambiguity in
the commits clauses is the protean word “impartial.” It
has been around for a long time and has resisted
precise definition. It is easy to say that a judge who has
a financial stake in the outcome is not impartial. But
how about a judge who receives a campaign contribution
from one side? A big campaign contribution? A whopping
campaign contribution? See Caperton ($3 million from
one donor, more than all other contributions combined).
A judge who has promised constituents to use tort law
to soak out-of-state manufacturers for the benefit of in-
state plaintiffs? Plaintiffs have not suggested any re-
vised wording that would be more specific but achieve
the state’s objective. Courts and administrative bodies
provide greater certainty by examples (advisory opinions
stating that such-and-such behavior is, or is not, compati-
ble with “the impartial performance of the adjudicative
duties of judicial office”).
Plaintiffs contend that the Commission has its mind
made up on many subjects and therefore is not a
No. 09-2963 27
suitable body to disambiguate the Code. Yet declara-
tions by the Commission (more often, by its staff rather
than its members) that the body views one or another
kind of statement “with disfavor” (or some similar
phrase) does not call the administrative process into
question. When the Judicial Conference’s Committee
on Codes of Conduct, the body that issues advisory
opinions interpreting the Code of Conduct for United
States Judges, issues an opinion or guide saying that
some particular conduct is problematic, it is doing
exactly the same thing. People may not always like the
information they receive, but these examples curtail
ambiguity. Anyway, the Commission is a prosecutorial
body in Indiana; final decisions are made by the state’s
Supreme Court. Under the Hatch Act, the Uniform Code
of Military Justice, and the National Labor Relations Act,
a prosecutor brings charges of wrongdoing, and the
ensuing adjudication adds to the law’s specificity. Just
so in Indiana. The Commission’s prosecutorial role sets
in motion a process that yields greater certainty.
V
The recusal clause, Rule 2.11(A)(5), names one conse-
quence of violating the commits clauses. Rule 2.11(A)
provides:
A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality*
might reasonably be questioned, including but not
limited to the following circumstances: . . .
28 No. 09-2963
(5) The judge, while a judge or a judicial candi-
date,* has made a public statement, other than
in a court proceeding, judicial decision, or
opinion, that commits or appears to commit
the judge to reach a particular result or rule in
a particular way in the proceeding or contro-
versy.
A judge’s failure to recuse, when this clause applies, is
a ground for discipline. Indiana Admission & Discipline
Rule 25(III)(A)(7).
What we have said about the commits clauses implies
the validity of the recusal clause. States have a strong
interest in ensuring that judges come to their cases
without precommitments. See Caperton and the many
decisions it cites. But there is more to be said. The
recusal clause does not present a constitutional issue at all.
The recusal clause applies to a judge in his role as
public employee, not his role as candidate. It specifies
how a public employee will perform official duties (or,
rather, which public employee will be assigned to
which duties). Garcetti v. Ceballos, 547 U.S. 410 (2006),
holds that speech as part of a public employee’s duties
is categorically outside the scope of the first amendment.
The state, as employer, may control how its employees
perform their work, even when that work includes
speech (as a judge’s job does). Rule 2.11(A)(5) represents
a decision by the State of Indiana to assign to each
lawsuit a judge who has not made any statement “that
commits or appears to commit the judge to reach a par-
ticular result or rule in a particular way in the pro-
ceeding or controversy.” That decision is unexceptionable.
No. 09-2963 29
No public employee is entitled to do any particular task;
a state may select the employee who can best do the job.
Gregory v. Ashcroft, 501 U.S. 452 (1991), tells us that this
means that a state may choose to assign appeals to
younger judges (the Court held that the Age Discrimina-
tion in Employment Act does not apply to an elected
judiciary). Likewise a state may decide to assign each
case to a judge whose impartiality is not in question. All
Rule 2.11(A)(5) does is allocate cases among judges, just
as 28 U.S.C. §455(a) does for federal judges. States are
entitled to protect litigants by assigning impartial judges
before the fact, as well as by removing partial judges
afterward. As we put it in Siefert, 608 F.3d at 985, “[i]t 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”.
We modify the district court’s judgment to provide
that the challenge to the 2008 version of the Code is
dismissed as unripe, not as moot. As modified, the judg-
ment is
AFFIRMED .
8-20-10