In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2963

TORREY BAUER, DAVID CERTO, and

INDIANA RIGHT TO LIFE, INC.,

Plaintiffs-Appellants,

v.

RANDALL T. SHEPARD, 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.

ARGUED DECEMBER 3, 2009—DECIDED AUGUST 20, 2010

Before EASTERBROOK, Chief Judge, and MANION and

EVANS, Circuit Judges.

EASTERBROOK, 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 appointment. 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 potentially 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 judicial 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 American 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 comprises Rules 2.10(B) and 4.1(A)(13), which forbid judges

and candidates in judicial elections to make commitments that are inconsistent with the impartial performance 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 comprises 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 discipline, 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 forbidding 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 Commission 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 preventing 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 government 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 enforced.”). 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 Commission must decide to prosecute, even though an injunction 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 candidate* shall not: . . .

(4) solicit funds for, pay an assessment to, or

make a contribution* to a political organization 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 constitutions, statutes, rules, and decisional law; that “contribution” 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 judicialethics rules:

A judge, candidate for judicial office, or judge-elect

shall not personally solicit or accept campaign

contributions. A candidate may, however, establish a committee to solicit and accept lawful campaign contributions. The committee is not prohibited from soliciting and accepting lawful campaign 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 fundraising events. When the committee solicits or

accepts a contribution, a judge or candidate for

judicial office should also be mindful of the requirements 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 supplemental 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 difference. 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

LEXIS 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 retaliation 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 campaign committee’s imprimatur, the court concluded.

Certo has not made anything of the fact that the definition of “personally solicit” in Indiana’s Code includes

letters, so it is unnecessary to address the distinction drawn in Carey between in-person and written solicitations. 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 candidate* 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 delegate 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 restrictions; 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 considerations support limits on political leadership and speechifying as fully as they support limits on partisan endorsements (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 therefore 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 politicalactivity 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 clarification. 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 subsections 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 otherwise 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 institutions 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 organization 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 elaborated 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 judiciary. 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 justification for the Hatch Act is the preservation of public confidence 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. Allowing 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. LEXIS 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 employees’ political activities. The majority in Wersal concluded 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 discouraged 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 questions 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 overruling 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 pre2009 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 questionnaire 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 dismissed on the pleadings—we must assume that plaintiffs 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 unconstitutional 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 (promises “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 products.) 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 overbroad 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). Plaintiffs 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 announced 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 exceptional detail, by writing a treatise about some subject (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 problematic in a way that a judge who has announced considered 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 declaring support for the rule of law or adherence to stare

decisis. Carey at *45–49.

As plaintiffs see things, however, the phrase “inconsistent 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 performance of the adjudicative duties of judicial office”?

Neither the commits clauses nor the Code’s definitions 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 doctrines, see Fed. R. Crim. P. 52; Ind. R. App. P. 66(A),

under which errors that don’t impair a defendant’s substantial 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 misunderstood—or that the Commission and the Supreme Court

of Indiana may treat as “inconsistent with the impartial

performance of the adjudicative duties of judicial office” even the sort of statements that are squarely protected 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 Commission 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 administrative 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 unbecoming an officer and a gentleman” is not unconstitutionally vague, because military tribunals have elaborated 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 ambiguities in the 2009 version of the Code. (Another way

to reach the same result would be via Pullman abstention, 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 instate plaintiffs? Plaintiffs have not suggested any revised 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, compatible 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 declarations 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 consequence 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 candidate,* 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 controversy.

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 particular result or rule in a particular way in the proceeding 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 Discrimination 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 judgment is

AFFIRMED.

8-20-10