"Were this issue to go to court, it would not even be a close call"
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
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.
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.
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.
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
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.
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.
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
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.