(2) interfere with the proper performance of judicial duties.
Canon 5 specifies that a judge may not engage in certain types of political activity, but contributions are not specifically listed. Consequently, an old advisory opinion of the Texas Committee on Judicial Ethics indicates that the Committee believed that the ethical rules permited “a Texas judge to make a contribution to the Democratic party.” This, however, leaves open the issue of whether doing so leaves the judge's impartiality open to question in a particular case.
Intriguingly, the Texas ethical rules can be contrasted with the rules governing federal judges. Canon 7 of the code of conduct for federal judges provides:
A. A judge should not:
(1) act as a leader or hold any office in a political organization;
(2) make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office;
(3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions. [Emphasis added]
The genesis of this rule appears to be the idea that federal judges should avoid political entanglements whenever possible in order to eliminate the appearance of impropriety. Perhaps the fact that state court judges in Texas must run for office, and that it remains a political environment, justifies the difference in the two rules. Certainly the idea that a separate judge ruled on the issue is intriguing. The standards for recusal of a federal judge were perhaps most recently discussed when Supreme Court Justice Antonin Scalia refused to recuse himself from a case involving a governmental energy task force despite attending a hunting trip with Vice President Dick Cheney, but there was no additional judge reviewing the issue.
In any event, many observers of the DeLay case have already been struck by the similarities to the Hutchinson case, in which DeGuerin managed to obtain his client's acquital. DeGuerin has already said that while he doesn't think "anybody needs me more" than Tom DeLay, he doesn't believe DeLay "did anything wrong." He's managed to do in this case exactly what he did almost a decade ago: force the initial judge off the case. It remains to be seen whether he'll obtain the same final result.