In December 2018, New York’s Advisory Committee on Judicial Ethics (“ACJE”), which I proudly served on for ten years, issued Opinion 17-28, concerning an inquiry by a judicial candidate as to whether he or she could respond to a candidate questionnaire prepared by the New York State Right to Life Committee (“RTL questionnaire”). In the RTL questionnaire, the candidate is asked a series of questions concerning the candidate’s personal beliefs on abortion, the beginning of life, Roe v. Wade, the definition of personhood, the New York and United States Constitutions, and so on. Each question asking for the candidate’s personal beliefs is preceded by a prefatory acknowledgment of “the judicial obligation to follow binding precedents of higher courts and applicable constitutional and statutory provisions, to honor stare decisis, and to decide any future case based on the law and facts of that case.”
Concluding that the RTL questionnaire, “when viewed as a whole, is clearly designed to elicit a series of implied pledges, promises, and commitments, touching on a wide variety of closely interrelated issues that may come before judges at every level of the judiciary” and that “a candidate’s impartiality” could “ ‘reasonably be questioned’ in a wide variety of cases . . . if he/she agreed to the bold-faced statements on the questionnaire,” the candidate was advised to decline responding to it. As I strongly disagree with the ACJE’s opinion, I write this Article to express my personal views on the subject. Let me emphasize that this Article reflects my attempt to engage in a reasoned analysis of an admittedly difficult topic which, in my opinion, has not been sufficiently explored or discussed by academics, ethics committees, or judges since the Supreme Court of the United States decided Republican Party of Minnesota v. White (occasionally abbreviated herein as “White”).