Subject: Re: [EL] Only 22% of Americans think most judges should be appointed
From: "JBoppjr@aol.com" <JBoppjr@aol.com>
Date: 4/13/2011, 7:42 AM
To: "mmcdon@gmu.edu" <mmcdon@gmu.edu>, "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

    This sounds so much like the game "shoot the messenger."
 
    I assume that the doubters would credit a poll done by the American Bar Association.  They did a poll in 2002 and one of the questions was which judges would be "more fair and impartial," those elected or appointed.  75% of the general public said that those judges who were elected verses those that were appointed are more fair and impartial.  So having judges appointed is guaranteed to reduce the public's confidence in the fairness and impartiality of the judiciary.  Below is an excerpt of my law review article that cites this poll (it is not available on the ABA website, but it is archived).  Jim Bopp

"The assumption that public concerns about campaign contributions translates into a lack of confidence in the judiciary is also not supported by the evidence. A 2002 poll by the American Bar Association, for example, found that 72% of respondents were at least “somewhat concerned” about whether “the impartiality of judges is compromised by the need to raise campaign money to successfully run for office.”[1] Yet, the same poll found that 75% of respondents thought elected judges were more fair and impartial than appointed judges.[2] According to a recent poll, only five percent of respondents believed campaign contributions made to judges had no influence at all on decisions judges made in Minnesota state courts.[3] Nonetheless, the same poll found widespread public confidence in the courts, with 74% of respondents saying that they had “a great deal” or “some” confidence in the courts, and 76% saying that they had “a great deal” or “some” confidence in judges (higher rates than for any other category except the medical profession).[4] The courts are consistently among the highest ranked institutions in terms of public confidence.[5] And while the majority of Americans will express some level of concern about the potentially corrupting effect of money in elections, this does not appear to be their most pressing concern.[6]

[1]. Harris Interactive, Inc., Harris Interactive Telephone Omnibus Survey: A Study About Judicial Impartiality, Prepared for the American Bar Association 6 (August 2002) (on file with author).

2. Id. at 4.

3. Decision Resources Ltd., Justice at Stake Study, Minnesota Statewide 5 (2008), http://www.justiceatstake.org/files/MinnesotaJusticeatStakesurvey.pdf (last visited Oct. 22, 2008). This despite the fact that Minnesota prohibited judges and judicial candidates from personally soliciting campaign contributions.

4. Id. at 1-2.

5. According to a 2001-2002 survey, 96% of respondents rated the job being done by courts and judges of their state as being either “excellent” or “good.” Justice At Stake Campaign, State Judges Frequency Questionnaire (Nov. 5, 2001–Jan. 2, 2002) (on file with author). A 1999 survey found that 77% of respondents had either “a great deal” or “some” confidence in the United States Supreme Court, and 75% had similar confidence in local courts. And, 79% agreed with the statement that “[j]udges are generally honest and fair in deciding cases.” National Center for State Courts, How the Public Views the State Courts: A 1999 National Survey (1999) available at http://www.ncsconline.org/WC/Publications/Res_AmtPTC_PublicView
CrtsPub.pdf.

6. Scott Rasmussen, 55% Say Media Bias Bigger Problem Than Campaign Cash, Aug. 11, 2008, http://www.rasmussenreports.com/public_content/politics/election_20082/2008_presidential_
election/55_say_media_bias_bigger_problem_than_campaign_cash (last visited Oct. 22, 2008) (reporting poll finding 55% of respondents thought media bias posed a bigger problem in politics than large campaign contributions).

In a message dated 4/13/2011 10:01:35 A.M. Eastern Daylight Time, mmcdon@gmu.edu writes:
There is a difference between representativeness and margin of error in
polling.

I'll grant that Rassmussen's polls may be representative of what he calls
likely voters -- however that is defined when there is no pending election.
You may think the general public has similar views to the likely voters, but
that is your belief. It cannot be determined without polling the general
public. That is, you need a representative poll of the universe you are
interested in. Further consider -- you are asking likely voters if they
should be allowed to vote on an office. In that light, it is remarkable to
me that as many as 22% say they would not want to elect judges. There is
thus a strong reason to suspect likely voters hold different preferences
than unlikely voters over an action that defines the two groups: voting.

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon@gmu.edu               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444


-----Original Message-----
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Paul Lehto
Sent: Wednesday, April 13, 2011 9:01 AM
To: Smith, Brad
Cc: Election Law
Subject: Re: [EL] Only 22% of Americans think most judges should be
appointed

I'm aware that Rasmussen is a Republican-leaning polling outfit and
has their own model of "likely voters" as most pollsters do, and that
it's controversial in some quarters.  That being said, this will only
increase the margin of error and not fundamentally change the result.
It shouldn't be surprising that voters favor having judges accountable
to them via elections instead of unaccountable (or unaccountable, if
life tenured) to those who appoint and/or confirm.

On a few issues, this one included, I think there are distinct
differences between the political class, however defined, and the
general public.  For example, on the subject of international aid,
such aid is very popular with the political class who see its utility
in influencing foreign affairs, and much less popular with the general
public.

Without defending Rasmussen, yet conceding some additional margin for
error, I think Rasmussen's poll numbers are 'in the ballpark' and make
quite a bit of sense on this particular issue.  I take Rasmussen's
results poll by poll, and when I do cite them it is with the
consciousness of those shortcomings others point to in this thread.

Paul Lehto, J.D.

On 4/13/11, Smith, Brad <BSmith@law.capital.edu> wrote:
> Leaving Rasmussen aside, is there really much doubt that the American
public
> (or the subset of likely voters) prefer elected judiciaries?  Paul G.
notes
> the old incongruities in American public opinion, and, for example, it's
> true that the appointed U.S. Supreme Court usually shows up quite well in
> "confidence" surveys. But it strikes me that electing judges pretty much
> always comes out on top in any poll, and most importantly, in any
> referendum.
>
> Bradley A. Smith
> Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
> Capital University Law School
> 303 E. Broad St.
> Columbus, OH 43215
> (614) 236-6317
> http://www.law.capital.edu/Faculty/Bios/bsmith.asp
>
> ________________________________
>
> From: election-law-bounces@mailman.lls.edu on behalf of Paul Gronke
> Sent: Wed 4/13/2011 12:59 AM
> To: Paul Lehto
> Cc: Election Law
> Subject: Re: [EL] Only 22% of Americans think most judges should be
> appointed
>
>
>
> Paul,
>
> There are so many problems with Rasmussen's polls and his transparent
> agenda that I'm not sure where to start.  The "political class" you
> are referring to is a creation of Rasmussen's.  The three questions
> that are supposed to separate the "political class" from the
> "mainstream" (Rasmussen's tendentious labels) are here:
>
http://www.rasmussenreports.com/public_content/politics/general_politics/aug
ust_2010/67_of_political_class_say_u_s_heading_in_right_direction_84_of_main
stream_disagrees
>  In the same story linked above, Rasmussen asserts that our "treasured
> heritage" of self-governance have been "diminished beyond all
> recognition ... as little more than allowing voters to choose which of
> two politicians will rule over them."
>
> Well, no.  "Our cherished heritage" originally included just ONE
> chamber of ONE branch of government with direct popular election.
> Rasmussen has apparently forgotten about the Electoral College,
> indirect election of Senators, and the appointment process to the
> Supreme Court.
>
> But let's forgive Rasmussen's ignorance of American political thought.
>  Let's look at the poll directly.  It asks a series of agree/disagree
> statements about judges.  The one you highlighted is about whether
> judges should be "elected or appointed."  Judges are not identified
> any further than "judges."
>
> Problem 1: What judges?  Federal, district, state, local, traffic court?
>
> Problem 2: Is the opinion target "judges" distinct, meaning, would
> respondents give any different answer for any other governmental
> office, from president to dog-catcher?  We have no idea therefore we
> have no context within which to place the responses.
>
> Problem 3: Do we have any other information about the accuracy of
> perceptions of Courts?  37% of the same respondents state that the
> "average" judge is "too liberal" and that the Supreme Court is also
> "too liberal."  Interesting.  I am not going to comment on what the
> makeup of the Court should be, but anyone who thinks the current Court
> merits the label "liberal" is reflecting political fiction more than
> legal fact.
>
> But even if we accept the poll results, do we find this surprising and
> do we find it revealing?   Consider some alternative data points: in a
> series of studies, John Hibbing and Elizabeth Theiss-Morse showed
> that:
>
>      84% of the public favored more use of initiatives
>      68% wanted term limits on Congress
>      63% wanted power shifted to state and local governments
>
> Sounds like a populist public, right?  The same study found that 48%
> of the public endorsed either "leaving government decisions in the
> hands of successful business people" or "leaving government decisions
> in the hands of non-elected experts."  65% of the sample agreed that
> "people just don't have the time or knowledge to make political
> decisions."
>
> We've long known that the public expresses support for more elections
> and more control, yet the same public expresses skepticism about
> elected officials and longs for non-partisan, expert decision making.
> It would take too long to explain this apparent contradiction here--I
> refer you to Hibbing and Theiss-Morse's excellent books on the
> subject.  This doesn't even address the much more fundamental issues
> that I started with: we don't design constitutions by asking questions
> on public opinion polls.  Public support is one piece of information,
> but it's far from dispositive.
>
> ---
> Paul Gronke    Ph: 503-771-3142
> paul.gronke@gmail.com
> Professor of Political Science and
> Director, Early Voting Information Center
> Reed College
>
> http://earlyvoting.net <http://earlyvoting.net/>
>
>
> On Tue, Apr 12, 2011 at 7:39 PM, Paul Lehto <lehto.paul@gmail.com> wrote:
>> It is, perhaps, a disappointment to some on this list that only 22%
>> (in a Rasmussen poll released today) think that most judges should be
>> appointed. Sixty-five percent (65%) favor election.   What Rasmussen
>> calls 'the political class' disagrees, with a plurality of 49%
>> favoring appointment.   I conclude that the people still favor
>> democratically elected judges, despite hand-wringing amongst the
>> political class about the "evils" of judicial elections.  Among other
>> things, this hand-wringing (if it becomes successful) has the effect
>> of shifting power to the political class, because the power of
>> appointing judges shifts power to elected officials and political
>> establishments and away from voters.
>>
>> See
>>
http://www.rasmussenreports.com/public_content/politics/general_politics/apr
il_2011/65_say_most_judges_should_be_elected_political_class_disagrees
>>
>> --
>> Paul R Lehto, J.D.
>> P.O. Box 1
>> Ishpeming, MI  49849
>> lehto.paul@gmail.com
>> 906-204-4026 (cell)
>> _______________________________________________
>> election-law mailing list
>> election-law@mailman.lls.edu
>> http://mailman.lls.edu/mailman/listinfo/election-law
>>
>
> _______________________________________________
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>
>
>


--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul@gmail.com
906-204-4026 (cell)
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