“Were this issue to go to court, it would not even be a close call”
We’re frankly shocked that scandal-plagued liberal Republican Tom Horne and his campaign are trying to make this an issue. It’s pretty low when a candidate goes after someone’s wife. We all remember when judges contributed to Andrew Thomas’s opponents, showing up their political events, and nothing happened to them. Where was the outrage then? What about when judges like Arizona Supreme Court Justice Rebecca Berch testified against legislation regarding judges? Watch the video below, there is absolutely nothing wrong with a candidate’s wife who is not identified as a judge appearing as his wife in a family video! What a massive invasion of free speech if she was not allowed to be in that. Horne should be ashamed of himself and read up on ethical rules.
STATEMENT OF CLINT BOLICK ETHICAL ISSUE REGARDING JUDGE BRNOVICH
Ethics questions have been raised regarding the appearance of Maricopa County Superior Court Judge Susan Brnovich’s appearance in a campaign video for her husband Mark, who is running for Attorney General. The assertions of impropriety are ludicrous and raise more concerns about the accuser than the accused.
Susan Brnovich is not only a judge but also a wife and mother. She appears in the video in those capacities, and is nowhere identified as a judge.
The purpose of ethical restrictions on judges endorsing candidates is to avoid the appearance that the judiciary is lending its weight to a campaign. No such danger exists here. Nobody would know that Susan Brnovich is a judge from the video. Indeed, if people find out she is a judge, it will likely be the result of the complaints being raised rather than anything Judge Brnovich did.
If the ethics rules were applied to prevent Judge Brnovich from speaking in this manner, it would be the rules rather than her conduct that create the problem. The U.S. Supreme Court and other state and federal courts have consistently ruled that judges do not shed their First Amendment rights.
Courts have held that judges may campaign for themselves, take positions on issues that may appear before them, and even appear at partisan political events. That is because ethics rules must be very narrowly tailored to avoid infringing upon judges’ rights to free speech and to participate in the political process. The rules must be construed in a way that does not violate the First Amendment.
Indeed, if a government official were to file an ethics complaint against a judge for exercising her First Amendment rights, it would have the effect of chilling the free-speech rights of judges.
By way of disclosure, Mark Brnovich is a personal friend and worked at the Goldwater Institute some years ago. However, my Goldwater colleagues and I consistently defend the free-speech rights of candidates and their supporters. Indeed, my colleague Nick Dranias has served as an expert witness for Attorney General Tom Horne on a First Amendment issue in the past.
Were this issue to go to court, it would not be a close call. It is unfortunate that in the heat of a campaign actions are sometimes taken that reflect poorly on the part of people who should know better.
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