Counting on the Low-Information Voter

The LSE Blog features some interesting new research by University of Texas Professor Brent Boyea on the intersection of partisan elections, campaign contributions, and professionalized courts. Looking at 12 years’ worth of data from state high court elections, Boyea found that campaign contributors are nearly twice as generous, on average, in states with partisan judicial elections than they are in states with nonpartisan judicial elections. He also found that “contributors support candidates more actively in states with professionalized courts where judges have higher salaries, advanced resources, and courts have freedom to decide their agenda.” And contributors are most generous when elections are partisan and courts are professionalized. This suggests, to me at least, that campaign contributors expect to get the most “bang for the buck” in states where a candidate’s election is all but assured on partisan grounds, and the elected judge will later have some freedom to act in a manner consistent with the contributor’s own agenda.

Somewhat related is this story out of Illinois, discussing how attorney Phillip Spiwack legally changed his name to Shannon O’Malley in advance of his campaign for a Cook County judgeship. Spiwack/O’Malley appears to be conceding to a stubborn reality of Chicago judicial elections: having an Irish woman’s name is an extraordinarily valuable commodity at the polls—more valuable, it seems, than professional experience, skill, or judicial temperament.

These items add to a growing body of evidence that in judicial election states, citizens are virtually expected to come to the polls armed with no more information than a candidate’s party affiliation or surname. How this advances the integrity, efficiency, or legitimacy of the judicial system is beyond me.

(Cross-posted at Prawfsblawg.)

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Georgia judge faces contested election after prominent local attorney promises “blood sport”

Georgia Superior Court Judge Ralph Van Pelt, Jr., a twenty-year veteran of the bench, will be opposed for reelection for the first time after a local attorney threatened “blood sport” against him.

In late 2016, prominent local attorney Bobby Lee Cook wrote to Judge Van Pelt: “I want you to finish your two years remaining on your term and to qualify for re-election — if you have the stamina and resolve! There is nothing so interesting as a Northwest Georgia election where politics for generations has been a ‘blood sport.'” Cook was apparently infuriated by Judge Van Pelt’s position that Cook’s daughter–herself a local judge–was not qualified to serve as the circuit’s chief judge.

Cook, a lawyer since 1949, considers himself to be a local power broker.  He has represented many prominent Georgia families and was portrayed in the film “Midnight in the Garden of Good and Evil.” Cook credits himself with placing Van Pelt on the bench in 1996.

Last week, attorney Melissa Hise announced that she would challenge Judge Van Pelt in May’s election. Cook says he supports Hise’s candidacy but has nothing to do with it.

Van Pelt is more suspicious.  “As a general rule,” he said, “I don’t believe in coincidences.”

 

Some thoughts on the Wendy Vitter nomination

I am quoted toward the end of this NOLA.com story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.

The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith.  None of these should derail her nomination.

Continue reading “Some thoughts on the Wendy Vitter nomination”

Another ill-advised effort to “fire” judges, this time in New Mexico

In the fall of 2006, a partisan group in Colorado tried to convince that state’s voters to adopt a ballot initiative that would retroactively remove five of the state’s seven supreme court justices. The justices’ offense? They were all appointed by the same Democratic Governor over a span of a decade. Proponents of the measure argued that the targeted justices had decided cases in a blindly partisan manner, notwithstanding all evidence to the contrary. An exhaustive and concerted effort by the state bar and other groups eventually stopped the initiative from passing, but the bad taste of populist politics remained.  In 2010, a group calling itself “Clear the Bench Colorado” again tried to remove four state supreme court justices by voting for non-retention. Again, the effort was unsuccessful.

Instrumental to countering these “clear the bench” messages has been the presence of a longstanding and well-respected judicial performance evaluation (JPE) program in the state. For nearly twenty years leading up the 2006 ballot initiative, state judges had been periodically evaluated by local commissions, and the evaluation results shared with the public leading up to each judge’s retention election. As I have documented in this article, the Colorado JPE process should be credited not only with convincing voters that their judges were highly competent and professional, but also that occasional controversial decisions needed to be placed in broader context in determining whether a judge should remain on the bench.

Unfortunately, the same trend is now infecting Colorado’s southern neighbor. A group calling itself “Clear the Bench New Mexico” is calling on voters to “fire” judges who have issued sporadic controversial decisions by voting to not retain them in office.

But maybe New Mexico’s JPE well-established can serve a similar heroic role. As set out here, the process takes a comprehensive look at the judge’s work twice during his or her term in office, focusing (as with other JPE programs) not on case outcomes, but on each judge’s capacity and commitment to providing a fair process. Individual evaluations are posted for each judge facing retention, and voters can read these evaluations and make up their own minds.

A common complaint about JPE is that retention voters rarely read the full evaluations. Many choose not to vote at all with respect to judges, and others vote haphazardly — focusing, for example, on the judge’s last name or perceived gender, or whether the judge is recommended by a lawyer friend. So there is much work to be done for the JPE process to meet its full potential. But surely it is a better way to inform the public than the half-baked wranglings of political partisans.

The local impact of judicial selection wars

The Dallas Morning News has a good story about the impact of longstanding federal judicial vacancies in Texas. For all the attention that President Trump has received regarding his judicial nominees, relatively few have been confirmed at the district court level. The article gives us a good look into districts where judicial emergencies stemming from longstanding vacancies are, unfortunately, a way of life.

Pennsylvania court will have to operate with only two full-time judges

Effective Monday, the Court of Common Pleas of Mercer County, Pennsylvania will be down to two full-time judges.  One of those judges, Robert G. Yeatts, recently assured the public that courts will stay open for business, using retired judges to “run the courts as much as possible.”

Fortunately, the state politicians responsible for filling the seats seem aware of the problem and plan to add new judges as soon as possible.  But this story beings into sharp relief the courts’ dependence on others for their most basic resources.

 

Muslim judge on the short list for appointment to Israel’s Supreme Court

Israel’s Judicial Selection Committee reportedly is strongly considering Khaled Kabub, currently a district judge in Tel Aviv, for appointment to the country’s Supreme Court. If appointed to an open poisiton this coming February, Judge Kabub would be the first Muslim to sit on the court in a permanent capacity.

The Selection Committee includes (among others) current members of the Supreme Court, the country’s Justice Minister, and representatives of the Israel Bar Association. It is the bar association that is reportedly pushing Kabub’s candidacy. The choice is interesting not only because of Kabub’s religion, but because of his current position: he would be replacing Justice Yoram Danziger, who came to the court from the private sector, and there had been a general understanding that Danziger’s replacement would also be a private attorney. The bar association, however, has argued that it is important for the Court to reflect all segments of Israeli society, and the appointment of a Muslim judge would advance that cause.