Via Fax and U.S. Mail

A. James Elliott, Co-Chair
Jeremy T. Berry, Co-Chair
Cary Ichter
Georgia Committee for Ethical Judicial Campaigns
c/o McKenna Long & Aldridge
303 Peachtree Street, NE
Suite 5300
Atlanta, GA  30308

Dear Gentlemen:

I apologize that I was unable to attend the judicial candidate convocation hosted by the Georgia Committee for Ethical Judicial Campaigns on July 24, 2008.  I was out of town at a Department of Juvenile Justice Board meeting, per appointment by Governor Sonny Perdue.

Because I am and will continue running a fair, honest and ethical campaign which meets with the letter and spirit of all laws and canons, I am unable to sign your judicial candidate pledge.  I applaud your efforts, and I agree with the spirit of your well-intentioned effort, but I do not believe that your requirements will have the result of a better judiciary.  On the contrary, I think that your pledge will have the potential opposite effect by limiting the scope and knowledge required of voters to fully and intelligently participate in the judicial election process.

First, I agree that campaigns – judicial, legislative, and executive – should be run in an ethical, truthful and honest manner.  I pledge to continue to run my campaign for Georgia Court of Appeals in a manner consistent with the highest moral and ethical integrity, just as I have in past elections for the Georgia Senate and Georgia Attorney General.

Second, I believe that Alexander Hamilton was right in Federalist 78 when he stated that the judges are to be “faithful guardians of the Constitution.”  I believe that to be true on both the federal and state levels.  I also believe, as did Hamilton, that when the will of the legislature is in opposition to the Constitution, the latter must govern.  However, we only need to look at the last days of this year’s U. S. Supreme Court session to see that the nuances of the personal ideology of judges influence their interpretation of the Constitution.  I believe that it is clear to everyone that Justice Anthony M. Kennedy has become the swing vote on the court, taking the place of former Justice Sandra Day O’Connor, the former predominate swing vote on the court.  No doubt Kennedy’s view of incorporating international law into the interpretation of our laws influenced his opinion in overturning the application of the death penalty in severe child abuse cases where the victim does not die.  I believe that Justice Kennedy embraces the European movement away from the death penalty.  The same would be true of his 2007 opinion in Gonzales v. Carhart, which affirmed the ban of partial-birth abortion, without a “health of the mother” exception.  That case, along with others, like Leegin, the overturning of the 96-year anti-trust precedent of Dr. Miles, which forbade distributors setting minimum prices, set off Breyer and Souter, who believe stare decisis is the paramount interpretive guide.
 
So, with that said, I believe that judicial candidates in Georgia not only have a right to speak out on issues, but that judicial candidates have a duty to voters to make known their philosophy, ideology, and core beliefs.  This does not mean that we should express how we would rule in any particular case.  Anticipating every fact of a prospective ruling is impossible, and frankly, makes little sense.  However, knowing how prospective judges feel about issues from a general standpoint is instructive.  We know that they are going to come out at some point in their judicial opinions anyway.  I distinctly remember Justice Sandra Day O’Connor expressing her views on abortion during her confirmation hearings.  I have also been in a room and heard our own State Supreme Court Justice Robert Benham openly talk about his personal religious faith.

On a more personal note, as a former State Senator and 2006 Republican nominee for Attorney General, my record on issues is both public and extensive.  My conservative views and positions, including legislation I supported and public statements directly related to issues during the 2006 statewide campaign, are well-documented and part of the public record.  At least one of my fellow candidates for the Court of Appeals is in a similar situation.  As such, it will be difficult if not impossible to conduct a campaign for Georgia Court of Appeals without reference to my record, as even a reference to my professional and political resume will reveal positions I have taken on many issues.  In this campaign, any discussion of my professional and political experience will of necessity involve acknowledgment of past positions taken and policies supported or opposed.

Our state has changed significantly in the past several decades.  Judicial candidates were elected on a partisan basis for more than 100 years in Georgia, a period in which one political party dominated state politics.  Now, with a vigorous two-party political structure in our state and judges elected on a non-partisan basis, Georgia voters deserve to understand the stark differences of legal and philosophical opinion and belief that separate judicial candidates from each other.  Only by constitutionally guaranteed and protected political speech can those differences be properly presented to the voters.  This view was affirmed by the U.S. Supreme Court in 2002 in the case of Republican Party of Minnesota v. Kelly. 

We need to look no further than recent U.S. Supreme Court decisions on gun control and the death penalty, in addition to court battles being waged on the question of legal marriage across the nation, to know that individual judicial ideologies have a direct impact on our legal system and culture.  Voters deserve clarity, not generalized statements about judicial independence that will undoubtedly be echoed by all the candidates for the Georgia Court of Appeals.

Third, the Committee’s requirement that fundraising be done by a committee rather than by the judicial candidate does not provide any substantive significance.  A judicial candidate is obliged to review all campaign contribution disclosures, which reveal the names, titles, and amounts of contributions given to the candidate’s campaign.  The “fundraising by committee” mandate is a distinction without a difference.  It would be nice to have a campaign committee raise contributions for the candidate; however, it’s not reality.  Political donors contribute based on the candidate, not the candidate’s committee.  I can see this rule benefitting incumbents who may have many would-be friends volunteer to raise money for them, but for challengers, and in this case an open seat, it is a different story.  Besides, would not the fundraisers, if attorneys, come to possess the same influence over the judge as any other donor, perhaps even more so?

Further, I find it hard to believe that any candidate in this race can sign this pledge with a clear conscience.  The anecdotal evidence presented by the recent Daily Report article indicates that candidates for this election are themselves raising money without relying on third parties or committees.  I am concerned that the pledge will require candidates for the open seat on the Court of Appeals to violate the fundraising terms due to the fact that several of the candidates are already on public record stating that as individuals, they have been raising funds for their respective campaigns.  According to the pledge, that is forbidden.  For me, I have run five elections and have never relied on anyone else to do the hard work of asking people to invest in my campaign.  It is counter-intuitive for me.  Contributions to my campaigns have not, and never will, prejudice my judgment or influence my decisions while in public office.

In closing, we should all take care to make sure that the judges we elect are competent, ethical, and who ultimately have a judicial philosophy that matches our own.  While I believe that the U.S. and Georgia Constitutions insist on judicial impartiality and adherence to the law, I also believe that judicial candidates have a right to inform voters, and that voters have right to be informed.

I therefore regret that I am unable to sign your candidate pledge.

 Sincerely yours,

 Perry J. McGuire