Political Activity by Judges’ Spouses

It turns out that the debate about political activity by judges’ spouses (most recently raised with regard to Virginia Thomas’s new political advocacy group) is nothing new.

The 1972 ABA Code of Judicial Conduct provided, in Canon 7.B(1)(a), that a candidate for judicial office “should encourage members of his family to adhere to the same standards of political conduct that apply to him,” and this was apparently seen as implicitly applying to sitting federal judges as well. See Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1130-1131 (2004). Judge Miner reports that, “My wife, a well-known political activist at that time, responded: ‘Consider me encouraged,’ and went on to lead some statewide and national campaigns.”

The rules have since changed: “The encouragement to adhere to judicial conduct rules now applies only in regard to the judge’s own political campaign,” see Model Code of Judicial Conduct Canon 5(A)(3) (1990). “Although a judicial candidate must encourage members of his or her family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate, family members are free to participate in other political activity,” says the official commentary to the Canon.

Likewise, in Application of Gaulkin, 351 A.2d 740 (N.J. 1976), the New Jersey Supreme Court reversed its earlier decision that a judge’s spouse may not participate in politics (there by becoming a candidate for office):

[T]he trend of modern law … reflects society’s realistic appreciation of the independence of both spouses in marriage and more specifically represents modern awareness and sensitivity to individual freedoms, rights, responsibilities and development….

All of this bespeaks a realist appreciation of the marriage relationship and the nature of the partnership it embodies: “[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.” …

The record before us indicates that no other American jurisdiction, whether by a court having administrative reponsibility for the conduct of judges, a judicial ethics commission, or otherwise, has ever undertaken to forbid or limit spousal public or political activity, with the exception of the Association of the Bar of the City of New York, Committee on Professional Ethics, whose Opinion No. 865, 20 Record of N.Y.C.B.A. 52 (1965), sought to control political activity of a judge’s spouse. It is pointed out to us that such opinion has never been cited with approval in any opinion or other writing since….

[W]e no longer see any confirmed justification for extending [the] prohibition [on political activity] to the non-judicial spouse…. As to the community’s perception of the spouse’s exercise of that right, emerging concepts of spousal independence and autonomy in activities, development, interests, rights and responsibilities lead us to appraise our earlier assessment of probable public discernment and sophistication as no longer realistic….

Sounds right to me.

UPDATE: For more on examples of judges whose spouses are involved in various forms of political activity (such as Judge Reinhardt, Judge Roth, and Judge Rendell), see the post here. Note also that the ethics rules end up being quite similar for district court judges, court of appeals judges, and Supreme Court Justices (though technically the Supreme Court Justices aren’t covered by the same rules applicable to other judges, they have in practice applied similar rules to themselves).