The 7th Circuit Court of Appeals has issued an opinion today with respect to Indiana Right to Life and the Indiana Judicial Canons in which Terre Haute right-to-life attorney, James Bopp figures prominently. The case revolves around Bopp and Right to Life’s attempt to force judicial candidates to take a stand on abortion issues prior to an election. The Judicial Canons prohibit judicial candidates from making statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.
To some extent, judicial candidates are probably hiding behind these canons in an effort to avoid answering abortion questions issued by Bopp & Co. that are framed simplistically in an effort to make a candidate look bad if he or she doesn’t answer in a way that would restrict a woman’s right to control her reproductive faculties. So, they want to get those canons thrown out so that judicial candidates can’t hide. Trouble is, they can’t find any judicial candidates who want to speak out on the issue or answer Right to Life’s questionnaire but feel that they can’t, solely because of the judicial canons.
So, Bopp tried to get clever. He said that Right to Life had standing to sue on First Amendment grounds because they had a “right to listen” that was being frustrated by the judical canons. Let’s pause a moment to savor the irony here. How many times have you heard a woman’s right to choose or the right to privacy ridiculed because it wasn’t specifically set out in Amendments 1-8 or 10-27 of the Constitution? (We’ll just keep quiet about #9 because it says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is awfully inconvenient when someone is trying to argue that a right doesn’t exist because it isn’t enumerated in the Constitution.) Perhaps it’s one of those penumbral emanations the Right to Lifers are always railing against.
Ok, irony-appreciation moment over. In fact, the court said, the First Amendment is a right to communicate, which involves speaking and listening. However, before a right to listen can be said to have been violated, one has to have a willing speaker. So, Bopp & Right to Life are back to their problem of not having any judicial candidates willing to claim that they were afraid to speak. (The court details a situation in which Bopp had gone so far as try to enlist a former law clerk who was now a judicial candidate to write the Indiana Commission on Judicial Nominations — the organization that enforces the canons — in an effort to get a response that prohibited a response. The former law clerk appears to have been luke warm to the idea at best, and the attempt to engineer a suitable controversy was unsuccessful.) Ultimately, the 7th Circuit dismissed the case because there is no “case or controversy” at issue. None of the named plaintiffs have standing to sue.