I herewith offer these thoughts on the Nathan Hecht controversy–he is appealing his admonition by the State Commission on Judicial Conduct for his public support of the nomination of Harriet Miers to the U.S. Supreme Court last year–as red meat for the critics.
Here is a summary of the case from the Texas Lawyer: “Last fall Hecht estimated that he gave 120 interviews to the press about Miers’ qualifications for the bench – including information about her religious beliefs and views on abortion – after her Oct. 3, 2005, nomination came under attack from conservative groups….At that time, Hecht jokingly said to Texas Lawyer that he had been acting as a ‘PR office for the White House’ and had been filling in gaps about Miers’ background to the press, countering some conservatives’ skepticism about her qualifications – statements that were referenced in the commission’s admonition.”
Hecht is arguing that the judicial code of ethics violates his right to free speech. His position makes this a high-stakes case for the Texas judiciary. If Hecht wins, the door will open to allow judges to introduce candidates running for public office, to run on tickets with other judges–in short, to practice politics as usual. Many judges, particularly in urban counties, think that these things are necessary for their political survival, since the public knows few of them by name. Other judges who are active in promoting judicial ethics see this as a threat to the independence of judges, who, if electioneering is allowed, will be under pressure to endorse other judges and political candidates generally. They also worry that allowing judges to politick invites corruption.
The commission found that Hecht committed two “persistent and willful violations” of the Texas Code of Judicial Conduct:
*Canon 2b forbids a judge from lending “the prestige of judicial office to advance the private interests of the judge or others.” Hecht had been asked by Karl Rove if he would make himself available to reporters and conservative groups to tell what he knew about Miers’ views. Among other things, Hecht and a federal judge who knew Miers participated in a group call with The Reverend James Dobson and other pro-life advocates. John Fund, writing for the Wall Street Journal, reported that someone asked the two judges, “Do you believe she would vote to overturn Roe v. Wade, to which the other judge answered, “Absolutely,” and Hecht said, “I agree with that conclusion. I concur.”
Whatever you may think of this, I don’t think it represents the kind of activity that the guardians of judicial ethics ought to worry about. It’s not akin to endorsing a county commissioner or a sheriff at an election forum. Reporters and interest groups may be constituencies, but they don’t vote. Only members of the United States Senate vote. Nor do I think Hecht was advancing a private interest. He was asked to provide information about a nominee to the Supreme Court of the United States by a representative of the president. What he did was no threat to an independent judiciary.
*Canon 5(2) says that “a judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party.”
I don’t agree with Hecht’s positive assessment of Harriet Miers’ qualifications, but, again, I don’t think that a Supreme Court appointment was what the authors of Canon 5(2) had in mind. A Supreme Court seat is not an ordinary public office.
Finally, I’m not sure that what Nathan Hecht does in Washington, at the request of the president, is any business of the State Commission of Judicial Qualifications at all, unless he commits an act of moral turpitude. If the commission loses this case, it may end up having done more harm to judicial ethics than had it simply ignored Hecht’s actions.