Unelected Lawyers Seek to Control Judicial Candidates
by Kevin Calvey
During my recent deployment to Iraq, I was proud to defend the cause of freedom.
How ironic, then, that I returned home to find some of my fellow Oklahoma lawyers trying to limit freedom.
An Oklahoma Bar Association committee approved changes to Oklahoma's Code of Judicial Conduct, including a new rule called Canon 3.6. The proposed rule will be presented to the Bar Association's Board of Governors on March 20, and will become law if it is approved by the Board of Governors and by the state Supreme Court. If passed, 3.6 could effectively be repealed only by a state Constitutional Amendment.
The rule would prevent judges from affiliating with organizations which "invidiously discriminate." The rule would thus allow a small group of unelected lawyers effectively to substitute its own judgment instead of the will of the voters on who is fit to be a judge and who is not. Thus 3.6 is the very antithesis of representative government.
Potentially dozens of wholesome groups, including the Boy Scouts, Fellowship of Christian Athletes, and veterans' organizations, could be negatively affected by 3.6.
The rule thus chills free speech, and alters the rules of political debate.
Some argue that wholesome organizations like the Boy Scouts would be vindicated on a "case by case" basis, meaning by legal proceedings. But why should a would-be judge take a chance on becoming a member of an organization which might or might not pass muster in such legal proceedings?
Lawyers who hope someday to become judges (I am not one) will avoid organizations which might even be perceived as being "discriminatory." Thus such organizations will tend to be deprived of good potential members on the mere fear of legal proceedings concerning "discrimination."
Moreover, most people don't want the hassle and expense of such legal proceedings. Most organizations will avoid behavior described by 3.6 as even potentially "discriminatory" in order to avoid a court case. Thus, 3.6 will effectively alter behavior of organizations that have nothing to do with the practice of law, even if a "case by case" analysis would ultimately vindicate such organizations.
This is Regulation without Representation.
Policy decisions which affect the general public, like 3.6, are not properly made by the Bar Association or by the courts, but rather by the Legislature, or by the people through an initiative petition.
Furthermore, the best response to discriminatory speech is not to criminalize that speech, but rather to promote more free speech, to expose those engaging in discrimination for what they really are.
The rule is an attempt behind closed doors by unelected, unaccountable, elitist lawyers to establish a politically correct Thought Police in our society. The rule marginalizes those who disagree with the prevailing political orthodoxy among lawyers. I hope that more reasonable members of the Bar will prevail, and vote this outrageous rule down.
There is no good reason for having a policy like 3.6. It is a solution in search of a problem. Where are all the supposed bigots among the current judiciary that 3.6 would cause to be removed?
If there were a member of a wicked discriminatory organization like the KKK or the Communist Party running for judge, doesn't the Bar Association trust the voters of Oklahoma to vote against that person? Apparently not, if 3.6 is approved.
You can read Canon 3.6 yourself starting on page 99 at:
http://www.okbar.org/ethics/judicialconduct/PreambleScopeTerminologyApplicationCanon1-4.pdf
What can YOU do about 3.6? Write the Oklahoma Bar Association (1901 North Lincoln Blvd, Oklahoma City, OK 73105) and the Oklahoma Supreme Court (State Capitol, 2nd Floor, 2300 North Lincoln Blvd, Oklahoma City, OK 73105), who will likely have to vote on enacting 3.6. Ask them to vote against 3.6, and tell them it is not possible to amend the rule to make it acceptable. Also write your state legislators at the State Capitol, to make them aware of the problem.
Experience shows that by speaking against a rule regarding "sexual orientation" such as 3.6, I will myself suffer discrimination, and will be unfairly branded as a "homophobe" or worse.
Just as I was willing to endure the hardships of Iraq for the cause of freedom, I am now willing to endure the stigma of "political incorrectness" for the cause of freedom. Someone has to stand up for freedom, no matter the cost. Because freedom is not free.
Kevin Calvey is an Iraq War veteran and a former State Representative.
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