[1] A judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates.
[2] When a person becomes a judicial candidate, this Canon becomes applicable.
[2A] Except as may be specifically authorized in the context of judicial election campaigns, Rule 4.1 prohibits judges and judicial candidates from “publicly” endorsing or making “speeches” on behalf of political candidates or organizations. Comments by judges active on social media or social networking platforms may be considered “public” for purposes of this Rule.
PARTICIPATION IN POLITICAL ACTIVITIES [3] Public confidence in the independence, integrity, and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence.
[4] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from misusing the prestige of judicial office to advance the interests of others. See Rule 1.3. The prohibition contained in paragraph (A)(3) does not prohibit candidates from campaigning on their own behalf or from endorsing or opposing candidates for judicial office in the same primary or general election.
[5] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no “family exception” to the prohibition in paragraph (A)(2) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associate with, a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity. The judge or judicial candidate may, however, attend events advancing the candidacy of the family member and contribute financially to the family member’s campaign to the same extent that a judge or judicial candidate may attend events and contribute money to any other candidate for public office.
[5A] Because society recognizes the special relationship between members of a family, including the expectation that family members generally support each other in all facets of their lives, there is less danger that a judge’s association with a family member’s campaign for public office will create the impression that the judge is misusing judicial prestige to support the candidate. For example, a judge may appear in a photograph to be used in a family member’s campaign for public office. A judge must not, however, be depicted in judicial robes in a courtroom or other context that suggests the prestige of judicial office is being misused.
[5B] A judge or judicial candidate should encourage family members in supporting the candidacy of the judge or judicial candidate to adhere to the same standards of political conduct contained in this Canon.
[6] Judges and judicial candidates retain the right to participate in the political process as voters in any election. Judges and judicial candidates may sign election-related petitions. Judicial candidates may also circulate petitions for themselves or other judicial candidates in the same election but must not circulate petitions for any nonjudicial candidates for public office.
STATEMENTS AND COMMENTS MADE DURING A CAMPAIGN FOR JUDICIAL OFFICE [7] Judicial candidates should be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (C)(4)(b) obligates candidates to refrain from knowingly, or with reckless disregard for the truth, making statements that are false or misleading or that omit facts necessary to make the communication considered as a whole not a false or misleading statement.
[8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate’s integrity or fitness for judicial office. As long as the candidate does not violate paragraph (D)(2)(e), the candidate may make a factually accurate public response. In addition, when false or misleading statements have been made regarding a candidate’s opponent, the candidate should disavow the statements and request the source of the statements to cease.
[9] Subject to paragraph (D)(2)(e), a judicial candidate is permitted to respond directly to false or misleading allegations made against him or her. The candidate should consider whether it is preferable for someone else to respond if the allegations relate to a pending case.
[10] Paragraph (C)(4)(a) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.
PLEDGES, PROMISES, OR COMMITMENTS INCONSISTENT WITH IMPARTIAL PERFORMANCE OF THE ADJUDICATIVE DUTIES OF JUDICIAL OFFICE [11] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices.
[12] Paragraph (C)(4)(a) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B) relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
[13] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law without regard to any personal views.
[14] A judicial candidate may make promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system or advocating for more funds to improve the physical plant and amenities of the courthouse.
[15] Judicial candidates who respond to questions or questionnaires or requests for interviews may have their responses viewed as improper pledges, promises, or commitments. See Comment 13. To avoid violating paragraph (D)(2)(e), candidates who respond should give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially. Candidates who do not respond may state their reasons such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality or that it might lead to frequent disqualification. See Rule 2.11.
