Presumptuous request

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The State DOJ has asked the State Bar of Wisconsin to write an amicus brief defending Wisconsin’s rule prohibiting judges from being members of political parties. That request came in a letter dated June 6.

I understand that the DOJ has a tough job in this case. Wisconsin’s rule appears likely to be struck down as unconstitutional, given recent U.S. Supreme Court precedents. Nevertheless, it is the DOJ’s job to defend the law, and make whatever nonfrivolous arguments he can in its defense.

Maybe the State Bar should file a brief supporting the State rule; maybe it should support Judge Siefert’s position. I’m sure there is a great deal of disagreement among members of the bar on the issue. Were the bar to support the state’s position, I would be very concerned that the Bar would be negatively perceived by the public as lawyers trying to deny voters access to information they consider relevant and perhaps even crucial – the political affiliations of judicial candidates.

“These lawyers and judges don’t think the First Amendment applies to them,” will be a complaint that laypersons will make if the Bar supports the State’s position.

Ultimately, regardless of whether the State Bar should weigh in or not, or which side it should weigh in on if it does, the DOJ’s memorandum strikes me as a rather presumptuous assumption that the state’s attorneys support the State’s position.