As the race for state supreme court heats up, we have returned to one of last cycle's controversies. What to make of statistics that show a justice has voted in favor of the claims of a criminal defendant. The Koschnick campaign has released some numbers and Abrahamson supporters have criticized the entire undertaking, including a comment by Tom Foley that he "still cringe[s]at Professor Esenberg's defense of that rubbish."
Some of the numbers that get bandied about are rubbish. But, as I argued last spring, analysis of this type can be useful. I cited, as an example, scholarship by our former Marquette colleague Jason Czarnezki(who is decidedly not conservative). Jason wanted to see how an approaching election affecting justices and chose criminal cases because of the strong public preference for judges to be tough on crime. Do justices get "tougher" as an election looms?
But, of course, you can't tell if they are becoming tougher during an election cycle without knowing what they do during "normal" periods. So he looked at all criminal decisions over a period of time and calculated how often each member of the court voted to grant some relief to a criminal defendant. (While some of these cases involve minor issues, we are concerned not with the percentage for any one justice but how the justices compare to each other and each will have the same mix of "major" and "minor" issues.)
That seems to be what Koshnick has done here. The results, if the sample of cases is large enough does tell us something about the relative views of the justices with respect to the rights of criminal defendants. He concluded that the Chief Justice and Justice Bradley were "non-conformist" judges by which he meant, not that they are free spirits (although they may be), but that they did not conform to public preferences regarding the treatment of criminal defendants. (Koschnick would call this "pro-criminal defendant.")
I don't know if Koschnick's numbers are accurate but they are consistent with Jason's and also, I think, with what any lawyer who follows the court would know. The Chief Justice is far more likely to grant relief to a criminal defendant than, say, Justice Roggensack.
This reflects differing philosphies about the nature of the criminal justice system, the relative positions of the state and the accused, etc. It may well be - almost certainly is - the case that, as the Chief Justice says, she (and others) approach each case on its own merits. But they do so with different presuppositions about the law and society and those differences are relevant at election time. When one denies these philosophical differences, one invites efforts to demonstrate them empirically.
Of course, debate on that subject is difficult. The public probably undervalues procedural protections for criminal defendants. But electing judges presupposes the ability of the voters to make these judgements.