Thursday, March 27, 2008

Musings on judicial campaigns

Yesterday afternoon, I had the opportunity to participate in a telephonic press conference with Kelly Ann Conway, President of the Polling Company. The conference was timed to coincide with the release of my white paper and a poll commissioned by the Federalist Society on attitudes of Wisconsin voters toward the state Supreme Court and certain issues around the role of the judiciary.

In the course of the conference, one member of the media asked about the emphasis on criminal law in the Supreme Court election, noting that ads focused on such issues are often run by groups, i.e., WEAC, WMC, etc., that do not seem to have criminal justice issues among their core policy concerns.

That seems true - in part. Criminal justice issues get overemphasized in these races because that is what the public responds to. Criminal law is what the people associate with courts. I agree that this can distort the conversation. In fact, I would argue that the most problematic decisions recently issued by the court (with the exception of Jerrell C.J. and the gun amendment cases) are not criminal law or juvenile cases.

But there may also be some substance to this. As a general rule (and nothing here is always true), judges identified as conservative (or liberal) on criminal issues are also conservative (or liberal) on other issues. The cynical way to view this is that all judges simply allow their politics to dictate their decisions, but I think it's more complicated than that.

During this period in legal history, it tends to be those judges with sympathies that are politically liberal who adopt interpretive approaches that tend to provide them with greater, rather than less, discretion. There is no law of nature that requires this to be so and it hasn't always been this way. It is, I think, a by-product of an entrenched emphasis within legal education on matters of policy and the use of the law to achieve political results.

Again, this is not an ironclad rule. We can find exceptions and to say that some judges regard themselves as having a greater degree of discretion does not not mean that they believe themselves to have complete discretion.

Often, this greater degree of discretion is informed by a view of the courts as charged with special solicitude for the interests of those who are thought (sometimes rightly and sometimes wrongly) to be unable to fend for themselves in the political process. Thus a judge with greater sympathies for criminal defendants may have less sympathy for business.

Thus, we ought not to be surprised if groups looking to elect judges who are less hostile (or more sympathetic) to business might wind up supporting judges who are also seen to be, in various ways, tougher on crime. It isn't that they support "tough on crime" judges who will then support their interests out of a sense of indebtedness. It's that they support candidates who have an overall approach to judging that results in a narrower interpretation of the rights of criminal defendants and a reluctance to interfere with the political process or interpret legal authorities to further the favored outcomes of what Justice Scalia called the "law-profession culture."

Having identified those candidates, those aspects of their judicial philosophy that polls the best - a sense that they are "tougher on crime" - gets emphasized.

Because those involved in judicial elections do not believe that there is any politically viable option to a "tough on crime" approach, those who want judges who are more likely to be sympathetic to the interests of the political left need to either portray their preferred candidates as tough on crime or attack the "toughness" of their preferred candidate's opponent.

So there may be a method to this madness, but, of course, I would like to see a broader conversation and I am not sure that you can't have one. Much of what you see in judicial elections (and every other kind) is poll driven. Is it possible that in a low interest election there is a greater opportunity for campaigns to shape attitudes - given that they are loosely held. Unfortunately, it may be just the opposite. Because the elections are low interest, you can't get people's attention long enough to shape attitudes.


Display Name said...

If only we had some beneficent organization who could help re-educate the public to high-school levels of understanding of what an appellate court actually does. Perhaps then we could free ourselves of the "tough on crime" trope. Only then can we return to the truly important issues like whether the gays can be gay-married. "But it polls well, so let's spend a few mill on it." No doubt the media likes it, too.

illusory tenant said...

I would like to see a broader conversation and I am not sure that you can't have one.

On that account, Professor, I could not possibly agree with you more.

Anonymous said...

It surprises me that the two most liberal attack dogs commenting here aren't using this as an excuse for public financing of judicial elections.

Of course, justice wouldn't be for sale if the Supreme Court would hold judges accountable. Butler hasn't so let's try someone new.

illusory tenant said...

Defense dog, thank you very much.

Mike Plaisted said...

Yes, professor, we must muse about why these outside organizations go off on these "soft on crime" tangents. Why might that be, indeed?

Maybe you can try looking in the mirror, where you will find your fellow travellers in the WMC standing behind you. Maybe you can ask them why they choose to not only make criminal cases their focus (when they are really concerned about other rulings involving businesses), but also lie about Butler's record. While you are at it, turn around and ask them why they are using the "Loophole Louie" epithet.

You won't get surprising answers. They are doing it because they think it works. And you have been right there facilitating and supporting parts of their campaign the whole way.

But, you go ahead, Rick. Tell us how just fine it is that the "Loophole Louie" language found its way into the WMC campaign. Then sit around and ruminate some more about how these darn campaigns go off on these infernal tangent.

Publius said...

Whatever happened to reformed criminals?

No one could be elected if they said they were, “soft on crime.”

California has passed a 3 Strikes Law

Which, likes the song says, “It’s one... two... Three strikes you’re out of the Old Ball Game”

You’re breakin rocks for thirty.

Sounds good... Cuts down on Crime. It does not violate the 8th Amendment.

But, you get cases like “Kevin Weber” and to quote Wikipedia, “As of 2007, California's state prison system holds over 170,000 prisoners in custody in a system designed for 83,000, and most California prisons currently hold populations more than double their design capacity.”

Now, you’re a young adult offender, how inclined are you to reform in this overcrowded system, with tremendous population density and less supervision from prison personnel, per capita?

Can you concentrate on learning a lawful trade, when you’re passed around like a party favor, every night to guys nicknamed, Leather and Knuckles? [PG-13 rated versions]

No! You go along to get along... Alive!

There needs to be some discussion of reformation rebuilt into the courts. However, it has to be from judges who can stray from the “Toughness” discussion. And people who can hear it.

Anonymous said...

According to the AP -

"The anti-Gableman group Greater Wisconsin Committee spent the most at $614,000."

There is so much whining and complaining about what the WMC spends when this liberal group has spent the most so far.

Anonymous said...

Mike -

it looks like "Loophole Louie" is very appropriate now that skeltons are coming out of the closet.

Is your office available to do everything for me if I wanted to be a judge. Who knows, I could take care of you in court, hey!

Anonymous said...

"it looks like "Loophole Louie" is very appropriate now that skeltons are coming out of the closet."

Hey, Supreme Court Justice Pat Crooks has been doing the same thing for years. Look at the Elections Board (GAB) list of current registrants and you see a prominent Madison lawyer listed as the treasurer and the lawyer's office as the mailing address.

Is this of concern to Dohnal and his ilk or are they just shameless hypocrites? This fact was injected into the debate on the same day that Dohnal filed his complaint.

If this were a legitimate complaint, it would have been raised long ago, so that the facts could be ascertained and objective information disclosed. But no, that's not the goal of the scum bags who filed the complaint. They want to politically assasinate the sitting Justice.

What an ugly campaign. FYI I listened to Gableman speak twice this week. The same wooden, memorized answers provided on consecutive days. The man is an utter and complete dolt! That's the real reason that Professor Ricky is sitting on the sidelines. He knows that the Circuit Court Judge is as dumb as a box of rocks.

Anonymous said...

anon 8:13 -

rather than complain about Crooks, file the complaint yourself if you think it's legitimate, no-one is stopping you. It certainly not a reason to not file on (Loophole) Butler.

There is a growing effort in the nation to try and return State courts to being fair and impartial. The only way that can be done is if our High Court holds judges accountable. J. Butler has been on the court for years and hasn't done anything to make sure our courts are fair and impartial. Has he?

Marcus Aurelius said...

I have noted elsewhere (as has James Wigderson) most people associate judges with criminal law. How many TV shows are out there featuring litigants in front of a judge arguing about a comma in clause B of paragraph 2,217 in section 81 of a contract?

Nope, most exposure people have to courts and judges is criminal related.

In addition, the role of judges I do not believe is clearly understood by many people. How many lenient judges are legendary? How many hanging judges are legendary? How many judges who specialized in hearing contract & corporate cases are legendary?

Remember, not only do we read blogs such as Shark and Shepherd we comment on them too. The close attention we pay to these matters is extraordinary.

We all can complain about that, but we can also complain the day is only 24 hours long and we have to spend about 1/3 of that asleep.

Display Name said...

How's that Dohnal complaint coming along?

Anonymous said...

foust -

it appears that the post by folkbum was written by the Butler campaign to spin this thing to get through the election.

Anonymous said...

folkbum said on Boots and Sabers -

"Butler’s campaign has now confirmed to me that, in fact, Butler did recuse himself in a number of cases featuring FF&SJ;, particularly those involving Levinson, even though they remain on CFG’s list of cases. I will be posting my own update shortly.

Posted by folkbum on March 28, 2008 at 1007 hrs"

Apparantly he is spinning for Butlers campaign.

Display Name said...

Forget the spin, Anonymi: What would a fact like? Would it bite me on the butt? Do I have to poke a stick in the bush to find it? Or should I trust PR from the Club for Growth as-is?

And careful, watch out for that GOP3 kid: he'll chew you a new one for being anonymous.

Anonymous said...

John -

all you're interested in is getting your guy Butler elected while I'm interested in fair and impartial courts. I do not want people to put problems into the hands of people they cannot trust because a Supreme Court was elected only out special interest.

Terrence Berres said...

John Foust wrote "If only we had some beneficent organization who could help re-educate the public to high-school levels of understanding of what an appellate court actually does."

Based on a discussion with some tenth grade students from a couple of suburban districts, it seems they were unaware of the existence of a Wisconsin Constitution. So we might not be talking about remedial instruction, let alone remedial instruction on appellate jurisdiction.