[EL] today's NY Times editorial on Alabama Supreme Courtpartisan election

[Smith, Brad]

Whoa!

The 2006 "study" by New York Times journalist Adam Liptak (actually a simple compilation of votes and contributions), isn't exactly "remarkable." Is it remarkable that you can find 1 judge who voted 91% of the time with "contributors"? Hardly. For the very reasons Jim and Roy suggested, that James quickly dismisses, we would expect contributors to support candidates with similar philosophies, and that means it is likely that there will be positive correlations. To then take the single most positive correlation and hold it up as proof of some type of improper influence is seeking to do too much.

The Liptak report suffers from more methodological flaws than you can shake a stick at. For example, it excluded a large group of votes by excluding cases in which there was no dissent. The logic was that "those presented the most contentious legal issues." First, that is not necessarily true. Any judge will tell you that you can have unanimous votes on very close, contentious issues. Indeed, any issue that gets to the state supreme court is arguably "contentious" by definition. (Consider as one example, on the federal level, Hosanna-Tabor v. EEOC - the issue was certainly contentious, and almost certainly more difficult than the 9-0 result would seem to indicate). Further, "contentious" issues might be, by definition, those where ideology is most likely to be determinative, and thus where the highest correlations would expect to be seen. Clearly, this deletion skews our understanding of what is taking place.

Liptak then excludes a second universe of votes - procedural motions, including those deciding whether to take or rehear a case. Yet the decision to take a case is, of course, often the most important decision a supreme court makes - certainly it is a necessary one for the judge who is swayed by contributions to accomplish his ends.

The Liptak report's "main study" (that is, the headlines) excludes contributions by lawyers, on the grounds that many large firms cover a wide variety of cases and clients. This is true, but overlooks the fact that firms are nonetheless typically known as plaintiffs' or defendants' firms, union or management firms, or in our field as Republican or Democratic firms. But while excluded from the "main study," Liptak did gather this information. And the report did note that "lawyers who gave money were not nearly as successful." In short, Liptak drives up the level of correlation by excluding a whole category of cases that would drive the number down considerably, and thus not support the thesis that the contributions were determining the votes of judges. With lawyers, the correlation rate was 55%, not the 70 percent + figure of the "main study." Even if a 70% correlation seems high to some (I don't think it is) a 55% correlation seems like what one ought expect based on issues of philosophy.

The report then excluded, "for the most part," contributions from interests that were not a party or an amicus to the case. I've never found how it decided which of "the least part" example to include. But while the idea of focusing on the parties before the court makes sense, it again affects the effort to understand what is really going on. A significant ruling on worker's compensation laws, for example, may be readily recognizable as having substantial effects on entities not party to the action, or even filing as amicus.

The report does not consider the size of contributions, except to include any over $1000. I would presume that in most cases most Oho supreme court justices could not even tell you who most of their contributors were, especially at the $1000 level.

And finally, the Liptak report counted as a vote with contributors cases in which the judge had accepted contributions from both sides to the dispute - obviously skewing the numbers upward while revealing little about the impact of contributions.

Personally, I am something of an agnostic on judicial elections. I tend to think that electing judges is a bad idea, but I've never seen anything that convinces me that the quality of justice or judging varies much from state to state based on the system of judicial selection. But I do believe that if you are going to have judicial elections - and that appears to be a rather settled question for the near future - then people have to campaign, and they have to have funds with which to campaign. And I agree with Jim and Roy that it does no service to attack judges on innuendo and correlation, which would include flimsy bits of work such as the Liptak report for the New York Times.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of James J. Sample [James.J.Sample at hofstra.edu]
Sent: Saturday, March 17, 2012 7:45 AM
To: Roy Schotland
Cc: law-election at uci.edu
Subject: Re: [EL] today's NY Times editorial on Alabama Supreme Courtpartisan election

Jim and Roy set up a false dichotomy and then succeed in pointing out that it's false. The success of their argument is entirely dependent on the false premise. The core concern is not about changing minds on an issue, it's about influence in the close, marginal case, and maybe even a non-ideological case at that.

If one does not think money has at least some of that influence, then that is a defensible view, but one that contains a conclusion that contradicts the remarkable Adam Liptak Ohio study (unless you think that a 91% correlation for one judge in a world where most cases are non-ideological in nature, or even have the same "ideology" (a business-to-business contracts case for example) is merely that---just correlation); the Palmer Louisiana study (which, though subjected to withering substantive and ad hominem attacks has some truly alarming substantive findings); the survey data of over 2000 state court judges themselves, nearly half of whom indicate that they believe money is influencing decisions, not merely correlating with them; and, of course, that detail known as centuries of human history, in which, as I understand it, money has on one or two occasions had some small modicum of influence.

Roy's reference to the "remarkable" and rare instance of "judges who really do take bribes" inadvertently highlights the reason that concerns about monetary influence in the courts ought to be taken seriously on a systemic, as opposed to individual, basis. Absent the acknowledgment of an express quid pro quo, which almost never exists precisely because it is tantamount to admitting criminal bribery, concerns about monetary influence in the courts will either be addressed either or, effectively, they will not be addressed at all. Reasonable people on this list and elsewhere can and do disagree as to the scope of the problems, if any, and as to the optimal solutions, if any. But Jim and Roy "attacking and diminishing" the NYTimes for "attack[ing] judges and diminish[ing] confidence in the courts," not, mind you, for what the Times recommends as its solution (about which I'm quite skeptical on a pragmatic level) but rather, for pointing out the actual concern that Jim and Roy then choose to elide represents, at best, a bipartisan missing of the boat.

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Roy Schotland [schotlan at law.georgetown.edu]
Sent: Friday, March 16, 2012 5:29 PM
To: JBoppjr at aol.com; richardwinger at yahoo.com; law-election at uci.edu
Subject: Re: [EL] today's NY Times editorial on Alabama Supreme Courtpartisan election

Accustomed to agreeing w/ RWinger and sometimes agreeing w/ JBopp (but always finding him stimulating or fun or both), may I agree that (in Jim's words)
"Nearly everyone gives to certain candidates because the candidate already agrees with them on the issues, not to get them to change their mind on a issue. A person is a fool to do what the NYTimes assumes everyone does."
It's distressing, even damaging, that we so very often run into the mantra about the evils of $supporting candidates, particularly judges, as if we believe they're up for sale and not, as Jim says, "already agree[ing]". I've no doubt that there are judges who. like the remarkable Martin Manton, really do take bribes. I've yet to hear any judge of recent decades (apart from penny-size shockers like the parking-ticket payoffs in two or three jurisdictions or something with Roofers in Pennsy if I recall correctly) named who, whether or not s/he shoulda recused, was believed to had a decision influenced by $$.
Let's not, like NYTimes so often, attack judges and diminish confidence in courts in the name of trying to make them nobler.
________________________________
From: law-election-bounces at department-lists.uci.edu on behalf of JBoppjr at aol.com
Sent: Fri 3/16/2012 3:38 PM
To: richardwinger at yahoo.com; law-election at uci.edu
Subject: Re: [EL] today's NY Times editorial on Alabama Supreme Courtpartisan election

The NYTimes is wrong again:

However, the NY Times says, "Requiring would-be judges to...raise large sums from special interests eager to influence their decisions seriously damages the efficacy and credibility of the judiciary."

Nearly everyone gives to certain candidates because the candidate already agrees with them on the issues, not to get them to change their mind on a issue. A person is a fool to do what the NYTimes assumes everyone does. Of course, the NYTimes spend millions of dollars to influence judges by publishing editorials urging them to do certain things, or not do other things.

For instance, after the stay was granted regarding the Montana Supreme Court decision refusing to strike down a corporate ban on independent expenditures identical to the corporate ban struck down in Citizens United, the NYTimes told the Supreme Court to take the case and even instructed them on how to handle it: "If the Supreme Court takes the case, it should call on the state court and the parties to gather data on the impact of Citizens United — including the rise of “super PACs” and their dominant role in campaigns — so that the justices make a decision based on a real case and controversy, as the Constitution requires.<http://www.law.cornell.edu/wex/controversy> "

Click here: The Supreme Court and Citizens United, Take 2 - NYTimes.com<http://www.nytimes.com/2012/02/22/opinion/the-supreme-court-and-citizens-united-take-2.html?_r=1>

I suppose the NYTimes thinks that the Justices who would be corrupted by the NYTImes' vast expenditure of corporate resources here are more likely to think like they do, so this is worth it. Fortunately most judges have much more integrity than the judges the NYTimes is apparently familiar with. But I doubt that we will see anytime soon a NYTimes editorial condemning the NYTimes for this blatant attempt to influence judges by the expenditure of their vast corporate resources. Jim Bopp

In a message dated 3/16/2012 3:02:19 P.M. Eastern Daylight Time, richardwinger at yahoo.com writes:
Rick Hasen linked to today's NY Times editorial, "No Way to Choose a Judge", which condemns partisan elections for elections for State Supreme Court members. I agree with the NY Times. The impetus for the editorial, as explained in the editorial's first paragraph, is that Roy Moore just won the Republican primary for Alabama Supreme Court Justice, polling over 50% in a 3-candidate field.

However, the NY Times says, "Requiring would-be judges to...raise large sums from special interests eager to influence their decisions seriously damages the efficacy and credibility of the judiciary."

In fairness, since the editorial starts off deploring the victory of Roy Moore, the NY Times ought to have included the point that Moore was vastly outspent by his two primary opponents, and he won anyway.

By the way, the November Alabama ballot will list only Roy Moore on the ballot as the Republican nominee. Democrats aren't running anyone. Any chance for an independent or minor party nominee for that office depends on the outcome of a lawsuit pending in US District Court in Alabama, against the state law that demands all minor party and independent petitions were due on March 13. They required 44,829 valid signatures. Only Americans Elect submitted a petition. There is a special 5,000-signature procedure for independent presidential candidates, but not other candidates.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147


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