EASTERBROOK, C.J.
The Supreme Court held in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (White I), that elected judges, and candidates for judicial office, have a right under the first amendment to declare their legal views to the electorate during their campaigns. The decision left open myriad questions of implementation, and litigation has ensued across the country in those states that give the voters some say in choosing judges—either through direct election or by retention votes on judges who came to office by appointment. Recently we held that Wisconsin violated the Constitution by forbidding judges to be members of political parties, but that rules restricting partisan activities (such as endorsing a candidate for non-judicial office), and personal solicitation of funds, are valid. Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010). Today’s appeal concerns provisions of Indiana’s Code of Judicial Conduct. . . .
Indiana Right to Life, Inc., sends questionnaires to candidates for election or retention, asking recipients to state, among other things, whether they agree with Roe v. Wade, 410 U.S. 113 (1973), which held many forms of abortion legislation unconstitutional, and whether they subscribe to propositions such as: “I believe that the unborn child is biologically human and alive and that the right to life of human beings should be respected at every stage of their biological development.” (The district court’s opinion includes excerpts that convey the gist of all nine questions.) Most recipients have either ignored this questionnaire or told Indiana Right to Life that they fear giving answers could jeopardize their judicial careers because of provisions in the state’s Code of Judicial Conduct.
Indiana Right to Life filed suit seeking to have these provisions held invalid, but its suit was dismissed for want of standing, because no person actually or potentially covered by the Code was a plaintiff. Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. 2007). Indiana Right to Life then recruited a candidate for judicial office (Torrey Bauer) and a sitting judge (David Certo) as plaintiffs to join it in this new suit. The candidate and the judge both say that they refrain from speaking about abortion, and other controversial topics, because they fear the prospect of sanctions under the Code. Bauer answered the group’s 2008 questionnaire but says that he will keep silent in the future because of the risk this would pose to his judicial career should he be elected. He expresses concern that his 2008 answers may come back to haunt him should he be elected. Certo has not answered the group’s questionnaire in any year. He, too, says that the Code has led to silence.
While this suit was pending in the district court, Indiana substantially amended its Code of Judicial Conduct, in light of changes to a model code published by the American Bar Association. The revised Code, which took effect on January 1, 2009, is the focus of this appeal—though plaintiffs also want an injunction against one provision that has been removed from the Code but was in force when Bauer answered the 2008 questionnaire. Plaintiffs challenge four provisions (or associated groups of provisions) in the current Code and one provision in the version applicable to 2008. The first comprises Rules 2.10(B) and 4.1(A)(13), which forbid judges and candidates in judicial elections to make commitments that are inconsistent with the impartial performance of judicial office. The parties call these rules the “commits clauses.” Canon 5A(3)(d) of the older Code covered similar ground but was broader; it is the provision relevant to Bauer’s 2008 answers. The second is Rule 2.11(A), which requires recusal when a judge’s impartiality “might reasonably be questioned.” This the parties call the “recusal clause.” Plaintiffs direct special fire at subsection 2.11(A)(5), which requires recusal if the judge “has made a public statement . . . that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.” This specifies a concrete consequence of violating the commits clauses. The third group comprises
Rule 4.1(A)(1) and (2), which limits the political activities of Indiana’s judges (the parties call these the “partisan-activities clauses”), and the fourth comprises limits on fundraising set out in Rule 4.1(A)(4) and (8) (the “solicitation clauses”).
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The district court thought that Bauer’s challenge to the pre-2009 Code became moot when the Code was amended. To say that a claim is moot is to say that it is too late for the judiciary to affect anyone’s entitlements. With respect to Bauer’s claim, however, the suit is too early rather than too late. It is unripe, not moot.
If Bauer should be elected in 2010 or later, the Commission might open a proceeding based on his answers in 2008, and the Indiana Supreme Court might remove him from office or discipline him in some other fashion. The amendment of the Code in 2009 does not eliminate the possibility of prosecuting and punishing earlier violations. Nor does the preliminary injunction preventing implementation of former Canon 5A(3)(d), which was in force when Bauer answered the 2008 questionnaire but has since been vacated. An expired or vacated injunction does not prevent a unit of government from punishing conduct, committed before the vacatur, that violates its laws. See Crane v. Indiana High School Athletic Association, 975 F.2d 1315, 1318–19 (7th Cir. 1992); Hoskins Lumber Co. v. United States, 20 F.3d 1144 (Fed. Cir. 1994). Cf. Hampton Tree Farms, Inc. v. Yeutter, 956 F.2d 869, 871 (9th Cir. 1992) (“[O]nce an injunction in a civil case has been invalidated, rights granted under the injunction no longer exist and cannot be enforced.”). So the dispute is not moot.
But before Bauer can face any consequence for his answers in 2008, a series of events must happen: (a) he must be elected to the state judiciary; (b) the Commission must decide to prosecute, even though an injunction was outstanding when Bauer gave his answers, and even though the Commission has never prosecuted any judge who answered the questionnaire (as about 10 judges or candidates did in full in 2008; about 20 more answered some questions); and (c) the Supreme Court of Indiana must impose discipline. That’s too many unlikely steps to justify constitutional adjudication. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007); Brandt v. Winnetka; and Lawson v. Hill, 368 F.3d 955 (7th Cir. 2004).
Because Canon 5A(3)(d) is no longer in force, neither Bauer nor anyone else can be “chilled” by the risk of future punishment. When deciding what to say or avoid today, any judge or judicial candidate looks to the current Code, not to provisions that were abrogated at the end of 2008. There is accordingly no need for prospective relief concerning pre-2009 rules. If the Commission ever hales Bauer (or anyone else) before the Supreme Court of Indiana on a charge of violating the former Canon 5A(3)(d), a defense based on the first amendment can be raised and adjudicated in the regular course.
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For the purpose of a personal-solicitation rule such as this, the fact that the judge went to law school at the same time as a potential donor cannot make a difference. The potential for actual or perceived mutual back scratching, or for retaliation against attorneys who decline to donate, discussed in Siefert, is the same whether or not the judge knows the potential donor’s first name. Asking family members for support poses less of this risk—unless the judge plans to ask distant as well as immediate relatives. Laws need not contain exceptions for every possible situation in which the reasons for their enactment are not present. It is the nature of rules to be broader than necessary in some respects. Siefert shows that Indiana’s rules are not facially unconstitutional. Indiana may well be willing to make exceptions for close relatives—recall that Rule 4.1(A) begins “[e]xcept as permitted by law” and defines “law” to include both regulations and decisional law. Rule 3.7(A)(2) already contains one exception for solicitations from a judge’s family. A federal court should not assume that a state will act unreasonably. Judge Certo should follow Indiana’s procedures for obtaining advice with respect to contributions from family members.
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Rule 4.1(A)(2) says that judges cannot make speeches “on behalf of” political organizations. This probably equates to acting as a party’s representative; it is therefore doubtful that this rule forbids all of the activity in which Judge Certo wishes to engage (though Rule 4.1(A)(1) assuredly forbids him from attending a political convention as a delegate). Kentucky’s politicalactivity rule, held invalid in Carey, is much broader than Indiana’s, forbidding a judge even to reveal his political affiliation. (Siefert held that such a rule in Wisconsin violates the first amendment.) To the extent there is uncertainty about what it means to speak “on behalf of” a political organization, Indiana provides means of clarification. Judge Certo should use them. The Commission already has issued several clarifying advisory opinions, which we need not recount. For current purposes it is enough to say that the principal applications of subsections 4.1(A)(1) and (2) are valid, which means that they cannot be enjoined across the board. (We discuss later how Indiana’s system of resolving marginal or otherwise uncertain matters of application affects plaintiffs’ contention that all of the rules are unconstitutionally vague.)
The desire to prevent judges from using the prestige of office for other ends underlies a great deal of the Code of Judicial Conduct for United States Judges. Federal judges can’t endorse political candidates or participate in fundraising, even for nonpartisan institutions such as law schools. A judge can’t serve on the board of a charitable organization if that organization is involved in litigation—and the fact that the judge plans to recuse from cases for or against the organization does not permit him to serve on the board. The judge cannot accept most positions on governmental panels outside the judicial branch. These rules, and other related ones, are in Canons 4 and 5 of the Code of Judicial Conduct for United States Judges and are elaborated in many advisory opinions. Canon 5 also forbids a judge to act as a leader in a political organization, make speeches “for” a political organization, and so on. If subsections 4.1(A)(1) and (2) of Indiana’s Code are unconstitutional, so are Canons 4 and 5 of the federal judges’ Code. We very much doubt that White I licenses federal and state judges to give stump speeches for candidates running for President, senator, governor, or mayor, or act as leaders of political parties.
Plaintiffs say that a judge who does not identify himself as a judge when making a political speech, or serving as an officer or delegate in a political party, has not misused the prestige of the office and does not imperil the public’s belief in the impartiality of the judiciary. Yet the audience (or at least the reporters covering the speech) knows who is on the bench and thus might think that the judiciary is behind the endorsement, or implicitly threatening retaliation against those who do not accept the judge’s recommendation. The Court remarked in Letter Carriers that one principal justification for the Hatch Act is the preservation of public confidence in the bureaucracy. 413 U.S. at 565. That is even more true about rules that keep judges out of active politics. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266–67 (2009). The judicial system depends on its reputation for impartiality; it is public acceptance, rather than the sword or the purse, that leads decisions to be obeyed and averts vigilantism and civil strife.
That judges can recuse when their favored political candidates are litigants is not an answer to this concern. Many a case presents political issues without involving a politician. Political platforms, and candidates, take strong positions on health care, torts, labor relations, crime, immigration, abortion, taxes, and a hundred more contentious issues. Unless a judge who speaks on behalf of a party, or serves as a party’s officer, recuses in all of these cases—which is to say, almost every case that comes before a court—the public would have good reason to believe that the judge is deciding according to the party’s platform rather than the rule of law. Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function. Preserving that confidence is a compelling interest. No one could contemplate with equanimity the prospect of a state’s chief justice also being the head of a political party and doling out favors or patronage, or deciding who runs for legislative office. States are entitled to ensure not only that judges behave in office with probity and dignity, but also that their conduct makes it possible for them to serve impartially. But the politician-judge will be disqualified so often that he will have the equivalent of a paid vacation, while other judges must work extra to protect litigants’ entitlement to expeditious decisions.
Letter Carriers said that it is constitutional to curtail bureaucrats’ political activity to ensure public confidence that civil servants “administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party.” 413 U.S. at 564–65. Exactly the same can be said about judges and the judiciary. When a state requires judges to stand for office, it cannot insist that candidates remain silent about why they rather than someone else should be elected. That’s the holding of White I. But the rationale of Letter Carriers remains, and is not undercut by White I, for political races other than the judge’s own. Subsections 4.1(A)(1) and (2) are constitutional.
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Rules 2.10(B) and 4.1(A)(13) are the “commits clauses” . . . .
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Under Indiana’s language, judges and candidates can tell the electorate not only their general stance (“tough on crime” or “tough on drug companies”) but also their legal conclusions (“I would have joined Justice White’s dissent in Roe” or “the death penalty should be treated as cruel and unusual punishment” or “I am a textualist and will not resort to legislative history” or “I will follow stare decisis” or “I am a progressive who will use a living-constitution approach”). Judges who have announced these views, on or off the bench, sit every day without being thought to have abandoned impartiality. Indeed, judges who have announced legal views in exceptional detail, by writing a treatise about some subject (Weinstein on Evidence, or Martin on Bankruptcy) have not made an improper “commitment,” even though a litigant can look up in the treatise exactly how the judge is apt to resolve many disputes. A judge who promises to ignore the facts and the law to pursue his (or his constituents’) ideas about wise policy is problematic in a way that a judge who has announced considered views on legal subjects is not. The commits clauses condemn the former and allow the latter. That’s because they are limited to commitments that are inconsistent with impartial adjudication and thus differ considerably from the rule at issue in Carey, where the sixth circuit expressed concern that limiting all commitments on “issues” would prevent a judicial candidate from declaring support for the rule of law or adherence to stare decisis. Carey at *45–49.
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Context may help to disambiguate a statement, but there is an irreducible risk that a promise may be misunderstood— or that the Commission and the Supreme Court of Indiana may treat as “inconsistent with the impartial performance of the adjudicative duties of judicial office” even the sort of statements that are squarely protected by White. We think that statements such as “judges have been too ready to find antitrust problems with mergers” or “mandatory minimum sentences are unjust, and “I will read those statutes narrowly” or “drunk drivers are a menace and should be dealt with severely” or “abortion should be freely available, and I will grant a minor’s application for bypass of parental consent when a statute gives me that discretion” are outside the scope of the commits clauses. But will the Commission and the state judiciary agree?
The best way to find out is to wait and see. The Commission [on Judicial Qualifications] issues advisory opinions that reduce uncertainty, and when the Commission brings a proceeding the state judiciary will issue an opinion that makes the rule more concrete. Plaintiffs want us to deem the law vague by identifying situations in which state officials might take an untenably broad reading of the commits clauses, and then predicting that they will do so. It is far preferable, however, and more respectful of our judicial colleagues in Indiana, to assume that they will act sensibly and resolve the open questions in a way that honors candidates’ rights under the first amendment.
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We modify the district court’s judgment to provide that the challenge to the 2008 version of the Code is dismissed as unripe, not as moot. As modified, the judgment is AFFIRMED.
Manion & Evans, Circuit Judges, concur.