tv Key Capitol Hill Hearings CSPAN January 9, 2015 1:00am-3:01am EST
to talk about home ownership followed by a discussion about religion and the free market. on january 20th the supreme court will hear oral arguments in a case challenging restrictions on judicial candidates directly soliciting campaign contributions. legal analysts discuss the pending case and judicial elections at the national press club in washington, d.c. this is an hour and ten minutes.
>> good morning, everyone. the timetable this morning is pretty tight. we want to be able to give a lot of time for questions. and so we're going to begin our presentation to you this morning. my name is andrew coen. i'm a fellow at the brennan center and a journalist with cbs news and the marshal project. and i'm delighted to be here in sunny, warm washington. to be part of this interesting presentation. in a moment, i'm going to introduce this distinguished panel each of whom knows a great deal more about this important supreme court case than i do. a couple of points. this is a case about money and judges and the first amendment. and in my 18 years as a legal analyst, it strikes me that's a combination that always draws quite a bit of interest, not just here in washington, but around the country. so when the supreme court takes up the case in a few weeks, it'll be interesting for a lot
of different reasons. the case also strikes me as significant because of the perceptions people have of it. if you are a fan of citizens united and mchutchen, you look at this case and you say, these clouds are parting and the sun is about to shine on this new area of campaigns, judicial campaigns, and that's a great thing. if you are not a fan of citizens united and mchutchen, those decisions, you look at this case and say, uh-oh the clouds are forming, it's getting darker and there's going to be a storm. and i think that's a good way to sort of perceive the way that people on both sides of this debate on both sides of the divide feel about this case. is it going to extend those priorities and precedents? is it going to restrict them? and what are the justices going to say? how different are they going to perceive the judicial election
from the regular election? the final, just note i want to make before we begin is you know, it struck me as i was reading this you know, we're taught, we've been taught our parents, grandparents were taught beggars can't be choosers. to me this is a case where the choosers are the beggars. and the people who choose who lives and dies, who chooses who goes to prison, who doesn't, who wins a case, doesn't win a case are begging for money. and i think that's also a useful way to look at this. and to figure out how serious this supreme court is about money of speech and the first amendment in a different context. those are my brief opening remarks about this fascinating case. and i'm going to begin to introduce our speakers. the idea is they're all going to speak. matt's going to give some specifics of the case. then folks are going to speak. then they're going to attack each other with a great deal of
vitriol. and you guys will be able to ask questions of them. to my far left we have scott gratac, a policy council and research analyst one of the co-hosts of this along with the brennan center. scott is relatively new to justice at stake but brings with him credentials that are pretty impressive. and over and over again, he has shown he's involved in these sorts of organizations and this notion of the intersection of civil rights and law. so he's going to offer his perspective. to my left, and i've wanted for decades to say this, to my left is ed whelan. just sounds weird. many of you know ed. ed is a fantastic columnist. he was part of the justice
department a decade ago. he has served on capitol hill as general counsel to the judiciary. he was a clerk to a ninth circuit judge, harvard, harvard law school, most of you in this room, i suspect are familiar with ed's writings and with his views. he's also the president of the ethics and public policy center. and i'm very much looking forward to hearing his perspective on this. to my right is tracy george who is a professor of law and political science. she's probably also delighted at the weather here in washington, although it probably can't be much warmer there, right? >> right. >> right. >> so she is a professor who brings a broad range of expertise to this topic. federal courts, illegal education. she's written numerous articles about the federal judiciary and the courts. and teaches a course that i would probably want to take if i
were at school there, life of the law. which is seems pretty interesting and probably isn't as boring as most law courses could be. and then to my far right is matt menendez who is counsel at the brennan center, one of my colleagues. he's part of the democracy program there. he basically works on the concept of fair and impartial courts. he was formally a partner at gibson, dunn and crutcher. do they still call it that? okay. the names of these big firms change often. and i've been out of it for a while. he worked in washington as an aide to senator john d. rockefeller. and obviously knows a great deal about this topic. and in fact, he is going to be the person who is going to initially take us through some of the details of this florida case, give us a little bit of context and perspective before we begin with our remarks. in the interest of brevity, i'm
going to turn it over now to matt and let him dazzle you with his detail. >> thanks, andrew. and to be fair, i was an associate at the firm. they never gave me shares. so i will try and keep this relatively brief, and then we can use the question time to get into areas which may interest people more. as a general background there are 39 states that use elections to fill at least some of their judgeships. and as we know, elections cost money and judges like any other candidates need to raise money. of the 39 states that elect judges, 30 of them have some sort of prohibition on personal solicitation that limit the ways in which judges can themselves ask people to contribute to their campaigns. of those 30, 22 states have relatively broad prohibition such as the one at issue in william julie in florida which prohibits all forms of personal solicitation, such as the solicitation that the petitioner
in this case sent out. it was a mass mailer saying i'm running for judge, please contribute to my campaign. in this case it did not actually result in any contributions. so, from the perspective of coming at this issue this is maybe not the ideal case to test the core of the issue of whether a judge walking up to a lawyer or litigant who has business before them right before their case starts outside of the courtroom and says hey, i noticed you haven't contributed money to my campaign yet raises concerns. so i think we believe this is a little more towards the outer edge of where the -- this comes from a judicial code of conduct, which we call the cannons, the primary means by which the judiciary regulates itself. one of the questions that i get asked a lot is why did the supreme court take this case? and i think the main reason is that there has been a pretty stark circuit split of federal
courts that have considered this this four courts of appeal have struck down some sort of -- some version of this cannon is unconstitutional, two federal courts of appeal have upheld it as constitutional. and all four states supreme courts that have considered it have found it constitutional. and i do think it is interesting to note that the state courts which are more familiar with judicial elections as opposed to the federal courts which are the lifetime appointment under article 3 seem to be more sympathetic to efforts to minimize the appearance of impropriety that can arise from judges directly asking for money. it's an interesting case, as well. the first time the court has considered regulations of judicial campaign conduct since 2002 when they decided the republican party of minnesota versus white. and that 5-4 decision by justice scalia, struck down a code of conduct that prohibited judges from discussing disputed or
controversial issues that were likely to come before them once they sat on the bench. a wide range of topics they were not permitted to talk about. in the majority opinion, justice scalia emphasized it. if you are going to have elections for judges, his view was you could not deprive the voters of the most salient information they would want to know in order to select the best candidate. and my question here is the limit on speech is very narrow. the only thing that a judge can't say is please, give me money. they can talk about their credentials, they can talk about their judicial philosophy. the only regulation on speech is that the ask has to come through a candidate committee. so one of the main things that we will be looking to see is how the court conceives of asking for money as being close to the
core or near the outer fringes of what the first amendment values that we look to protect are. a couple developments since white that are notable that we have seen a massive increase in the spending and judicial elections and scott will talk more about the money spent and how the public views that. the other development of note was the supreme court decided a few years ago, and in that case it was established that spending in judicial elections can raise serious due process concerns to the point where it is constitutionally impermissible for a judge to hear a case involving somebody who has contributed to their campaign. one other thing i would like to note is that restrictions on the speech of judges and lawyers it's not really a rare thing. there are all kinds of things that judges and lawyers aren't permitted to discuss. you can't have ex parte communications between judges and lawyers.
you can't reveal the contents of sealed hearings. there are a lot of limits on judicial conduct in terms of the boards they can sit on and fund raising for nonprofits and other things like that. and that's just to say that this is not some aberration in regulating what judges and lawyers can talk about. >> thanks. you're up. >> i'm happy to be here today. turns out it is very cold in nashville. but in nashville we just close. all the public schools private schools, everything is closed today in nashville, the temperatures that are slightly warmer than the temperatures in d.c. today. i asked questions about the decisions, courts and judges make and why they make those decisions and i answer the questions by using statistical,
empirical methods, right? that's what i do. i'm one of the members of -- one of the in a brief filed by empirical scholars and law political science and economics. and political science. i also teach law. and one of the messages i give students the first day they're in law school is about the substantial power we give to judges. and, in fact the most substantial power really is given to trial judges like ms. williams. trial judges make decisions with very limited oversight. they have discretion about what for most individuals are the most important events or interaction they'll ever have with the legal system. am i going to be released? what is the sentence going to be? what's going to happen if my
partner, ex-partner fails to pay child support? very significant life decisions in the hands of these judges. and our ability to monitor these judges once they're in office is pretty limited right? very few cases are reviewed on appeal. of those cases the vast majority are affirmed. while trial judges are not that visible to most of us most of us are focusing principally on the highest courts and states in and in the country, in fact, for the average citizen, they are the law. and as a consequence, we should be particularly concerned and interested in the rules that govern how we choose trial judges. on the relationship between judicial selection method and judges and their behavior. so a substantial and growing
body body. federal judges have always been chosen for life tenure and an appointment with confirmation. presidential nomination with advice and consent of the senate senate. empirical scholars have found that there is a strong relationship between campaign contributions and judges voting. these studies specifically demonstrate that the identity and the interest of donors impact the decisions that judges make. that is money biases. whether consciously or subconsciously the recipients actions. let's look at a few examples. business related disputes. it found the greater the contributions. both the fact of contribution and the quantity of the
contribution from business interest the higher the probability that a decision would be favorable to those businesses and businesses in general holding other variables constant. the impact of $1,000 contribution is a .35% to .69 percentage point gain in the probability of success. the single largest donors in state supreme court elections. other cities have revealed a relationship between the identity of law firms and the type of firm and the decisions of judges on state supreme court. so by type of firm here, i mean if plaintiff side firms, so trial lawyers, groups, or firms that often here we're talking
about complex litigation firms donate to judges. judges, those judges are more likely to supreme court plaintiffs in mass litigation. law firms who contributed to judges campaigns gained better rulings and disputes about arbitration decisions. they also were more likely to win appeals in tort suits. businesses and law firms are the largest source of contributions for judges based on the data you have available. when contributions rise. and it's not merely the fact of donations, it's the amount of money. research has shown that the donor who contributed more to the judge's campaign would be more likely to succeed.
now, these studies as most empirical research does, trying to demonstrate from the contribution to the behavior. right, think about studies you're already very familiar with of the behaviors of members of congress. if the donors are affecting what members of congress do? or donors are good at picking members of congress who are likely to support their decisions? and empirical researchers have tried to hone in on that question. and specific research has shown that the theory that the direction is from donor to judicial behavior has support in some specific ways. so, for example, studies have shown that judicial behavior changes as elections draw near. so as the fact, whether you
continue in office or not or pick an opponent in contested elections makes more salient the effective decisions on your future. you change what you're doing. then you reset back after the election is over. so they're more likely to hand down stiffer sentences in criminal cases as re-election draws near. they're more likely to support prosecutors and criminal procedure disputes, and they are less likely to grant reprieves in capital cases. if you focus on donors and donors perception about the direction of causality. donors have given to judges who did not previously support their position. donors have given to judges who face no opposition. finally, and i think this is in my view one of the most persuasive findings. judges' behavior is different if they don't face reelection. most states have some sort of mandatory retirement. judges who won't be facing
re-election because of mandatory retirement are not affected by past campaign contributions whereas judges who do behave differently. i'm happy to answer more questions about this or the amicas brief we filed but that's an overview of the research. >> thanks, tracy. ed, you're up. >> thank you andrew. thanks to all of you who have been here. i think i've been asked to be on this panel in part to be contrarian. see if i can do a little bit to achieve that goal. i find this to be a difficult, interesting case. i don't think contrary to andrew's take that one's view is on citizen's united and dictates a view on this case. let me highlight just a few issues here. one is the whole question of what the standard of review is that applies in the case. all parties reporting to adopt strict scrutiny as they acknowledge there's some possibility of something called closely drawn scrutiny lower
standard that might instead apply. i think this debate between these two standards illustrates the incoherence of the court standards of review altogether. but when you look at the florida bars case it's brief, it's difficult to see that it is applying anything remotely like strict scrutiny. we see talk of the state may reasonably conclude, has wide discretion could reasonably have believed. there's a one-threshold question. what standard of review does apply? i actually think the florida bar has a good argument that the brennan center develops nicely, which is that person to person solicitation presents special dangers of the quid pro quo or the perception of quid pro quo arrangements. now, it also happens, i think, that personal -- person to person solicitation involves special powers of -- it's more likely to result in favorable responses to fund raising requests for reasons independent
of the quid pro quo possibilities. any fundraiser would tell you, you want to have your principal make the ask because of the human reluctance sometimes to say no. difficult clash, i think, of these two points. that said as matt pointed out, the particular petitioner in this case who has been penalized below, william julie did not engage in anything that could be called person to person solicitation. she sent out a single mass mailing. that says something about the power of mass mailings. something i've learned about the hard way, as well, with my own organization. i think there's a good question whether the court will even address this broader issue, whether this rule against personal solicitation by judicial candidates is
constitutionally permissible, or not. it's possible, in other words, that the court might say indeed, i think some of the parties -- i think the aclu urges this. that whether or not this general rule violates the first amendment, it can't constitutionally be applied to ms. williams julie because the conduct she engaged in was nothing of the sort that implicates the quid pro quo concerns. might dismiss the case as granted. precisely because it doesn't provide an opportunity to resolve this clash. thad be unfortunate. it would mean that she would -- her loss would remain in effect even though the underlying reasoning of the court would be so clear that she wins. we don't decide the broadser issue. the court says it takes, in order to --
>> she didn't win the election, right? >> right. >> she lost the election and lost the case? >> now i emphasize all my views on this case are tentative. the reply brief hasn't come in yet. the aclu i believe, and it's brief. and points out the experience of other, some ten states or so that have judicial elections and don't have this bar with personal solicitation candidates suggests there is no compelling need for this. the last point i'd like to make in an effort to be provocative is that i think there's a tension between the brennan center's position that judicial, the judges are so fundamentally different from legislators. and the general view of judgment that's been offered by many on the left that judges really are just legislators or super legislators. and they ought to be encouraged
and invited to indulge their passions and their values. as president obama said in his notorious statements setting forth the empathy standard. hard cases can only be determined on the basis of one's deepest values, one's core concerns, broader perspectives on how the world works and the depth and breadth of one's empathy. if that's the view folks on the left adopt. and i don't think the position they're arguing that judges are fundamentally different from legislators coheres. again, that may go less to the merits of the case, how it should be decided into the incoherence of some of the views on the left. so with that, i'll hand it over. >> thanks, ed. >> thanks. >> other fair courts issues, as well, and also shedding light on brand new polling data that we have that shows the impact that these personal solicitation bans
have on public confidence in the courts. i think from the 30,000 foot view of the case is important because it's a good reflection of this new judicial culture that we've been talking about to some extent. it's a culture where judges are being forced to raise vastly more money than ever before which is in turn becoming somewhat of an arm's race between these judicial candidates. when these candidates become elected, they find themselves often times trapped in a culture that then perpetually challenges their ability to be fair and impartial. to this extent the case is a good reflection of this because it comes out of florida. as we've said, florida is one of the 39 states where some of the judges are elected. this puts the candidates who run in a challenging presumption when they're campaigning. on one side, they have to be because they're elected representatives reflecting the best interests of their community, interests sometimes sending in a lot of money to these campaigns to get their views across. while at the same time, having
to remain entirely impartial and independent. this tension created a series of major problems at the florida supreme court back in the 1970s. three former chief justices in the florida supreme court, or past presidents at the florida bar association have written the court a brief on this case to tell the story of how florida's ban didn't come about because of some hypothetical conjectural concern about ethics. it wasn't something that their political leaders read about in national headlines. it's because in the 1970s a full majority of the florida state supreme court, 4 out of 7 justices had to resign over corruption scandals. these were scandals that involved the justices intimidating lower court judges attempting to overturn bribery convictions for campaign contributors. allowing contributors to ghost write opinions from the court. and probably the most high-profile case of a justice flown out to las vegas by a dog
track owner that has a case in front of the court and a reporter from the miami-dade area follows the justice out to vegas and gets a shot of the justice on the dog track owner's money, rolling the dice at a craps table while the giant cigar is hanging out of his mouth. so these are the issues that led florida's political leaders to talk about personal solicitation bans. but the importance of these bans didn't fade away with those corruption charges. and with the scandals in the '70s. new polling that justice at stake and the brennan center have collected from last month demonstrates the importance that personal solicitation bans still have today. and it's not just in florida. so in the past polls from justices have shown about 95% of people think that campaign contributions affect judicial decisions. even more worrisome, half of the judges agree with this statement. but our new polling goes further than this. data from last month that
reflects voters' opinions from all 39 states that elect judges in some level of judgeship show these bans are effective at maintaining public confidence. 60% of respondents said their confidence in the courts would be lowered if judges were able to solicit campaign contributions. 63% of this group 81% said their confidence would be lowered a great deal. i think that data like this make it very clear that personal solicitation bans, in particular, do have a real impact on public confidence. and show that there is a real measurable value in prohibiting judges from asking for contributions directly. so i'll close by saying that while these bans are important for fair courts issues florida knew it then and, as polling shows, a majority of people still think it today. these bans are still only one part of a much larger solution a much-needed solution. keep in mind that florida's ban was passed in the mid-70s as part of a complete reform package. the crown jewel of which was the fact that florida changed the
way that it selects its supreme court justices. it went from a direct election system to a system where candidates were evaluated based on merit and then ultimately appointed by the governor. this is known as merit selection and it's used in about 24 states and also here in d.c. so i think that overall the case presents us an opportunity, a window into some of the broader issues facing fair and impartial courts, including how we select our judges. in this culture of high spending, special interest influence judicial elections, more and more people judges state advocates academics political leaders are realizing that something's got to give. more and more people are realizing that perhaps the idea of electing judges is becoming a broken idea and that the correlative notion of this is something that's going to fix itself is becoming harder and harder to believe. >> thank you, scott. to my left is -- has been writing some notes to himself. and i'm going to give ed a first
shot and we'll just go in that order to respond to any of the comments you've heard from scott or anyone else. >> well, really just to keep track of what people are saying. not necessarily to disagree. and i think tracy you know raised the important question of the direction of causality. in terms of our contributors finding folks who are going to be as a matter of judicial philosophy sympathetic to their perspective. or are the judges being influenced by the contributions? i think that's a very difficult issue for the inexact art of so-called political science to detect. but starting to be interested in what some of these studies have to say. i will just say one comment. matt talked about the fact that there are other restrictions on judicial speech, that's surely true. what the distinction here, i
think, we're talking about speech related to campaigns. and i think that is different from all of the other examples that he cited. so, if anyone has any comments on that -- >> i thought, ed, you raised some interesting points. and putting aside broader notions of judicial philosophy in how we select those. i do think left to right there's generally broad agreement that the nature of the judicial office differs from legislative and executive positions. i think this is particularly important. regardless of how you view the democratic process in the other branches of government, how responsive you expect your governor or state legislators to be to their supporters and the people who got them into office for a judge in terms of the parties before them. it is flatly unconstitutional to
favor one party over another because they supported you. you are required to apply the law to the facts of the case and not favor one party or another. and one of the main questions here is, with the nature of the judicial office differing from executive and legislative positions, can we regulate judicial elections differently to account for the due process concerns that are raised by the judicial office. and i think one thing to tease out and make clear in this case, there are two -- and ed spoke to the standard of review. and regardless of the level of scrutiny that it supplied, one of the questions is whether or not there is a compelling state interest at stake that allows the government to regulate. and here there twor state interests at stake. one is impartiality. that goes to the studies, whether or not there is bias introduced into the judicial process through campaign contributions.
and the other and i think equally important is the appearance of impartiality and the public confidence in the courts. and that gets to the polls and the studies that scott was discussing. the court the supreme court has emphasized over and over again that the judicial branch depends critically on the public's confidence in the courts. the old adage, the executive has the sword, the legislator has the purse and the judiciary has the public's trust. and when we see these very high numbers indicating that the way these elections are happening now is undermining the public's confidence that courts are, in fact pair and impartial. i think that raises important concerns above and beyond whether or not judges actually are favoring contributors over noncontributors. >> tracy? >> i would just speak to -- i want to speak to a couple of things. one, i want to build on some things that both scott and matt
said about florida in particular. i think to the extent you want to understand the rules in florida. you need to appreciate that florida is not unique in the amount of change that there's been in the methods of judicial selection. so while we're accustomed to the federal courts of course, have been the same since the founding. there's been dramatic change over time in the states in terms of how they choose their judges and how they regulate those methods of selection, including things like the candidate issue here. and these were not experiments for no reason. they were born out of specific crises that the courts like the courts in florida faced of corruption and bribery and the like. so we should think about this cannon in the context of states struggling with real problems they've had. beyond research like the research i've talked about that
finds relationship that might be more subtle and not readily reserved. and not necessarily conscious. it's just the inevitability that if you ask for money from someone and they give it to you psychologists identify this as a sense of debt or obligation and you feel like you must do something for that person in return. the second thing i want to mention is then speaking about in particular the personal solicitation because ed raised this. i think it's a very interesting question, to what extent do bans on personal solicitation do much work? is it merely campaign contributions and not the method by which you get them that's significant? and we don't have empirical research that tries to hone in on that distinction between any contribution and whether the contribution is the request of -- in response to requests. but there is, of course, a lot of psychological literature like that. i mentioned that when you ask for something and someone provides it to you, you do feel
a sense of obligation to that individual. and i think the judges, most judges that i've spoken with and this is quite informal would say they're very happy about the personal solicitation ban because of situations like the one hypothesized of asking people you know appear in your court on a regular basis to give you money for your campaign. so the personal solicitation ban strikes me as a relatively modest attempt as scott characterized it to try to regulate the effective campaign contributions on the behavior of judges. >> i have a couple of questions i'm just going to throw out. and my fellow panelists are free to answer them. first of all, i haven't read ever brief. but one of the initial questions that springs to my mind is where is sandra day o'connor? has someone gotten to her? and has she presented her opinions which we think we know about this case? i mean she has dedicated her post court life to the idea of
you know judicial selection. and has warned about the dangers of judicial elections. has somebody corralled her and asked her to chime in? >> i haven't. >> ed hasn't. >> i believe that she is writing circuit in the ninth circuit. it would be improper for her to comment on this case while it's pending. i will note that she was one of the five judges, justices in the majority in the white case in 2002. and in an interview subsequently several years later, she was asked after she stepped down off the court if there were any decisions she regretted. and she mentioned white as one of the cases where she felt that she voted the wrong way. and explained she was concerned that the case contributed to the increasingly messy atmosphere of judicial elections that we've
seen. so i wouldn't purport to speak to her. but i think it's safe to say that she has said repeatedly she's very concerned about state judicial elections as they're currently kukts lyly conducted. >> one of the circuits that's split with others? when we talk about that? >> yes -- >> clear split. >> well, there's an interesting case called wolson versus kin kinkanon. and i actually thought that case would have been a better candidate for supreme court review in which a three-judge panel struck down five codes of judicial conduct. not only the prohibition on direct solicitation, but several limitations on what judicial candidates can do to campaign with other political figures. there are limits on joint appearances, on making fund raising appeals on behalf of political candidates. and the opinion was three judges, three opinions, three completely different approaches
to the case, really showed how courts are struggling to grapple with these issues. and shortly before the supreme court, the ninth circuit had agreed to take that case and vacated the opinion. so there was a three-judge opinion out of the ninth circuit that struck this cannon and others down. but it had yet to be reviewed by the full panel. and they have now staid that case pending resolution of william julie. >> some of this discussion is focused on a particular case. some has addressed the broader issue of judicial elections. on that broader point i just want to emphasize every method of judicial selection has its advantages and disadvantages. and i think it'd be important to sort through what those are -- what i find a little odd about those who oppose judicial elections at the state level is they tend to favor the so-called missouri plan merit selection,
rather than something modeled more along the federal plan. that is the -- the missouri plan gives a tremendous amount of power to local bar groups to i think there could be some variation from state to state. i'm speaking generally here. but to present a slate of three or five candidates to the governor. and the governor has to select from those candidates. i think the federal model where the executive nominates and a body confirms is much more appealing than this missouri plan. but, again, my broader point is any system you can look at the incentives and disincentives it has for judicial candidates, you can see advantages and disadvantages. and you focus and emphasize its flaws, you can ignore that others have their vulnerabilities, as well. >> just to put a bow on it. the senator has put out a plan, recommended plan of how to select judges.
while it retains an election element, there are elections after a judge or justice is appointed, she's put her name behind a plan that gets rid of the direct election of judges. >> all continue to sit as an active judge on the courts below, which is something remarkable that raises its own questions of judicial ethics. >> another question i had as i was reading through the briefs was this argument for the folks who support overturning the ban who contend it's so underinclusive. it's so measly in the attempt to prohibit this practice or to solve this problem that it's unconstitutional. so that, you know you ban the direct solicitation but the campaign manager, right, can solicit. and you, you know, the candidate can basically get around the information, the candidate can get the information about who
donated and so forth. >> write thank you notes. >> yeah. right. and, you know, as you read through them, you begin to realize that on the one hand florida says look we really have this problem we need to solve and here's how we've chosen to solve it. and on the other hand, you look at it and you're like well, it's not much of a solution. there are so many sort of weasely ways around it, it really is no solution. i guess if question i have is, is florida at the vanguard of -- is this cannon the most aggressive in the nation? are there other states gone beyond what florida has done to more aggressively prohibit the direct campaign contribution? and how do you think the court is going to -- how do we think the court is going to look at this underinclusiveness issue? >> well, there are states that do go further. there are states that prohibit their judges from even learning
who contributed to their campaigns. i think one of the issues with, you know trying to prohibit the additional elements that you mentioned with underinclusion was in practice that could be a very difficult thing to do. the nice thing about florida's rule is it's fairly bright lined, it's easily administerable, there's a lot less work going into enforcing it. in terms of the personal solicitation, i think ed made a good point that it is more effective to have your principal ask. and i think particularly when the principal is a judge, there's an element of coercion that whether intended, or not, is felt by donors. and in some of these cases that have come up at other levels, there have been business groups that have weighed in and said one of the reasons they support the personal solicitation ban is it's much easier to say no to a campaign manager than it is to a judge. and i think that and one other
thing that i think that is interesting is that one reason many campaign finance restrictions are struck down is that the court is suspicious that they're not really about getting rid of corruption. that they're in practice incumbent protection. and i think this is an interesting provision where certainly a nonjudge candidate would in many cases like to make a direct solicitation. but i think it's particularly coercive for a donor to be asked directly by a judge that they are likely to appear before. and i think this is a provision that is unlikely to be a wolf in sheep's clothing, that is really about protecting incumbents rather than trying to protect the judicial integrity. >> and if you look at the bigger picture. about half of all campaign contributors are lawyers lobbyists, business interests. so these are the folks who are
giving to the justices in the first place. when the code was put into law in 1973, about 20% of disciplinary actions that have you know, judicial ethics related actions have been related to personal solicitation bans. have they been directly tied to this provision. if you look at why it was put in in the first place, there were three campaign contributors convicted of bribery on a lower court level, a justice tried to intervene and stop the bribery charges. the case went up to the florida supreme court, the justice sat for the case heard the case and voted to dismiss the bribery charges. so there was a direct solicitation there. another example, there was a golfing friend, a golfing buddy of one of the justices who personally asked if he could write the opinion about a public utilities case going in front of the court. so i think florida properly identified these were cases that can be tied to face-to-face contact. the importance of cutting and severing that, you know,
personal element to the relationship was critical. >> one other question, and then i'm going to turn it over to you guys is the issue of recusal. the folks who, again, want to get rid of these sorts of ethics rules say, well, the obvious and easy thing is to promote recusal, right? the judge who is -- who becomes known as taking money from a donor, the donor comes before her or him the judge has an obligation to recuse. and that should be the method by which we solve this problem. my view is the recusal is a broken concept that far too few judges recuse themselves when they should. but i'm wondering what you think the issue of recusal how it's going to play out either in the oral arguments or in the decision itself. is that going to be what the
supreme court grasps on to as it says we need to do something? >> if they do, it would -- at the very least be ironic. i would say while we -- at the brennan center believe recusal is very important. we do agree there's a lot of room for improvement. and we have several room for proposals for ways to strengthen recusal practice. one of the concerns and it's a fair point. and his dissent, he goes through a very long list of questions that show that at the very least can be a messy process that is difficult to carry out with precision. i think when recusal is obvious, it can be pretty easy to administer. but there are many marginal cases that are really tough questions. and as you mentioned, in many states judges rule on their own recusal motions. and the standard of review is often extremely deferential.
so in practice there's never an objective review of a recusal motion. . importantly, it's a case-by case basis. and when we're talking about the public's confidence in the courts and how it impacts that, that is a systematic problem. and a case by case solution is not going to work. and, in fact, this was another point, and recusal ironically can weaken the public's confidence in the courts in some instances. if they think judges are too partial to sit on a case and have to step aside. >> i want to get tracy. >> yeah, so i think recusal it's often the normative punch right on studies that show relationship between campaign contributions and judicial decision making. but it's simply impractical. let's deal with appellate courts separately from trial courts.
it's impractical for appellate courts here. one is that the effect of business contributions so be more favorable to all businesses. so recusal cannot change that impact because it may not be the specific business that's in front of you but rather the fact that you have a large number of business donors who will care about your decisions with respect to businesses is simply going to make you support any business that appears before you. recusal doesn't fix that. in fact, the principle of a common-law system is that judges decide a very small number of cases explicitly but effectively decide many more cases, right? they're highly leveraged institutions. you look at the u.s. supreme courts deciding fewer than a hundred cases a year. we obviously know their impact is much broader than that. you know a decision you make in a particular dispute is going to affect businesses, law firms, lawyers that face similar issues. so recusal really can't get at the underlying problem at an
appellate court because appellate courts make law and are going to decide cases that don't affect merely the parties before them. i think on a trial court level the problem is it's simply impractical because we wouldn't have any judges to sit in certain cases. if you're a defense law firm, you represent criminal defendants in a particular trial court. you're going to donate to all of the judges that you think have a chance of being elected in order to ensure they're favorable to you in a particular case. can they recuse themselves from -- if all those judges recuse themself, who is going to hear the case? that certainly would be in a court like ms. williams-yuleev was running for in limited jurisdiction in florida, you're talking about repeat player lawyers contributing you simply would rule out any judges. recusal i think sounds good in theory. matt has already done a great job showing how it has all kinds of other problems but for appellate courts and trial courts it is not realistic.
>> i also don't think much of recusal as a very effective means of addressing any problem that exists. i'm not sure, i think tracy is thinking that it anyone who contributed triggers a recusal which strikes me as a rather extreme measure. perhaps there could be alternatives. but i guess a broader point would be i agree with andrew that i think judges don't recuse as often as they should. i think we probably disagree on which examples we would cite, but that may illustrate part of the problem but there is also a culture among all nine supreme court justices that they're not going to be second guessing each other's nonrecusal decisions that this is something that you know, that the confident each gets right. so they may have greater faith in the effectiveness of recusal than i think the rest of us do. just one last point i mean,
tracy, you seemed more agnostic before on the causality when discussing the effect of campaign contributions from business and most reisn'tly you seem to be adopting a particular view of the directional causality. so -- >> it's because she's sitting near matt. >> well i would just say the study that i'm thinking of that looked at business decisions was the one that did the bess job of demonstrating causality. but you didn't say this, but i think it's a fair statement, any empirical study is defined by the population of cases it's looking at right it's a sample. i would be first person to say that we can only then draw inferences from the sample. so the study i'm thinking of did the best job of actually isolating causality. but i don't want to be taken to mean that judges are behaving necessarily unethically or knowingly if they're favoring particular interests. i think that it's human nature, this reciprocity principle and
that's the concern. >> now you folks have been waiting patiently as we've droned on here. now it's your turn. i've been reminded 17 times that you have to have a microphone in front of you when you ask your questions. i was actually apprehended briefly before this and told to remember. so if you would raise your hand we'll get the microphone to you you can ask your questions and we'll do our best to answer them. >> mark sherman with ap. i just wondered if maybe with the exception of ed, if 95% of people are persuaded that contributions make a difference in judicial decisions and if the empirical evidence also suggests it, then why do so many states elect judges and why has there not been just a wave of states going away from that? >> i would like to -- do you
want me to take a first crack at it scott and then -- >> i think historically there have been adjustments to these sort of problems. states have had particular situations like in florida that would cause them to be more responsive to these issues and to change ways of limiting outside influence special interest influence but for the most part i think that this issue, while the polling says that people are concerned about it it's not something that people get energized about. if you ask the average person they might not even be aware that judges are elected in their state and judges typically down ballot are not getting the attention that issues closer to the top are getting. so it doesn't mean that the need isn't there. it's just that perhaps reforming things procedurally have always had more of a hindrance than some of the more high profile issues associated with it. and it's a difficult thing to connect to people.
>> i can add a little historical context. the longer story there is an interesting amicus brief in this case filed by judge shugarman. you can read it on the blog or on the website. in a nutshell, this goes to a point that ed and i endorse that there is no system to picking judges. in the 1800s, most states used a federal model. one of the weaknesses of the federal model is it can be conducive to cronyism where executives are more likely to pick their friends and close supporters necessarily than perhaps the best judges. and the age of machine politics in the 1800s saw just a proliferation of party hack judges, and the reaction was to move to judicial elections as a way to try and take power away from those machines and to make the judiciary more independent from the other branches. >> progressive reform,
undoubtedly, right? >> right. and every reform spurs counterreform. and there's an evolving process. so elections were very much an attempt to promote a more independent impartial judiciary. they are largely a historical vestige of their time. >> tracy? >> i just agree largely with what people have to say. every selection method impacts judges' decisions elections were, as matt noted adopted in an effort to try to check the abuse, perceived abuse of the appointment process. i don't think it was merely perceived. the evidence is pretty strong on that. but in terms of the specific question of why don't voters then change the method of selection, what's interesting in the florida case since that's the case before us, is they did change the method of selection for appellate judges. they went to a form of the merit selection with retention plan but not with trial judge, not with the judges that they think
of as the judges in their lives. and i think that's pretty interesting. to try to understand if voters feel that this tension between accountability and impartiality is one that they would like to resolve when the judges are closer to where they are. what's disappointing of course, is that judicial races are low races, we know individual voters know very little. they're least likely to vote in judicial races. so i think in terms of answering the question why do we retain judicial elections i think it's because of the ideal of accountability and the challenge is, that, of course, we don't really have that in the races generally, but i certainly agree with ed that there's no perfect system and no perfect judges even if we had a perfect system. yes, sir give us a sec.
>> hi i'm with transparency international usa. i had a comment and a question. the comment is based on the fact that i began my legal career as a state prosecutor if miami, florida, and i think it sort of goes to what andrew said earlier that my experience was -- i don't really feel it makes like a huge difference whether the judge directly asks or whether or not there's a campaign committee. the practice in miami, which is the largest, most populous jurisdiction in florida, is that the legal community is still fairly small and campaign committees would organize you know, fund-raisers, oftentimes at bars and all of us prosecutors who made 30,000 or $40 hss this a year would come for the free beer and the defense attorneys would come to contribute. i think in the criminal side of things where i was practicing -- and this is my question for tracy. you had mentioned you see
particularly closer to elections judges sort of become more law and order focused. and yet the prosecutors are not the ones donating the money. and so i sort of have a question as to how that actually works. because we don't have any money to contribute. it's the defense bar that has a fair amount of money. so i can see sort of on the civil side where certainly money may play a larger role, but the criminal side i sort of have a hard time seeing how those studies would actually validate the suggestion that the campaign contributions do have an impact, but as a more general matter it would seem to me that there's very little actual distinction especially sort of county levels where everyone knows everyone and the judge can look at the list of who's contributed. it doesn't really matter whether or not it's the campaign committee that asks or the judge that asks, the judge is going to know at the end of the day who his friends are and who are not his friends. so i'm curious again, sort of why, you know, there has not
been more of a move to, you know -- florida passed these laws to solve this problem but it doesn't seem like this particular law solved the problem and especially when you thing about the massey case, i think there was a trip to the south of flans involved in that one, too. so the issue seems to be not so much the direct solicitation but the campaign contributions. >> the criminal defense or the criminal case findings are not as direct in effect as the effect in cases involving law firms and say tort suits mass litigation businesses and business disputes between individuals or businesses as defendants in tort cases. in those cases the hypothesis is and what they're test is a direct effect. a business gives, a law firm gives, it does better in court subsequently or similar firms, similar businesses do better in court subsequently.
behind criminal's rights is instead that if a business wants to oppose you or a law firm wants to oppose your re-election, typically the best argument to the public is not you're against the position that favors my business favors especially if you're a plaintiff's lawyer favors plaintiffs' lawyers, the best argument is you're not law and order. this is in fact, what we see. so the funding behind campaigns to unseat judges is funding from entities typically indifferent to criminal cases, but they recognize that the best ad is about a criminal case. that's the theory behind it because you're certainly right. prosecutors are not substantial donors to judges and many states are not allowed to donate in fact to judicial campaigns. >> i just want to add something. one of my colleagues at the marshall project christy thompson just did a long piece
last month on this issue judicial elections in the campaign ads that rise up against them. and you're dealing with one of the most cynical components of campaigns and especially judicial campaigns. and the idea that these business interests who care about tort reform or who care about jurisdiction or liability or other issues aren't going to come to consumers of news and television and papers and say, you know, let's band together and reduce the liability. they're going to come and say, you know this judge is soft on child sex offenders. and, you know, those ads are more and more pervasive even as there is this countermovement in this country i think, to be a little bit more sensible about crime and the dramatization of crime. that's going in one direction, these ads are going in the other direction. obviously they're effective
because they're pervasive in all of these states. if they weren't working they wouldn't be happening. >> as to why states are barring only solicitation by a candidate rather than also by these committees, correct me if i'm wrong, but i think this is the aba code proposal and reflects an understanding of the first amendment concerns would be far more severe. >> yes sir. >> we're making an increasingly difficult for mr. microphone man to -- pretty soon it's going to be in the ceiling. >> thank you. bill troy from the aba. i'm drawing this question from memory rather than recent reviews so i may be totally off base. as i recall 2 1/2 years ago judge lipman in new york on a recusal issue put in a threshold of $2500 for campaign contributions for recusal. has that gone into effect and has any of you kind of looked at it and how is that working?
>> slightly different. it's not actually recusal. it takes place through the assignment system, so if a judge has received more than $2500 contribution -- and the amount differs slightly based on the level of judges. we elect our trial judges in our intermediate appellate judges and our high court judges are appointed. so if a judge has received that much, the administrative office of the courts automatically assigns the case to a different judge and the judge never even knows that they were potentially getting that case. we are in the process of doing some research on various recusal regimes and trying to figure out ways to assess their effectiveness. so i think it's a very interesting system. it completely removes the discretionary element from the challenge judge. it takes away any sort of, you know appearance that a judge is a judge in their own case and we think it's a very interesting system. >> sounds like quite an
incentive to contribute to judges you don't want on your cases. >> one of the issues with any recusal practice is there is the potential for gamesmanship. and that's one of the reasons why it is so effective to design a really effective judicial regime. >> and there are systems that will add that gives the opposing counsel the option of keeping the judge in case they're conflicted. so that's an option. >> an easy one for you. >> thanks so much for bringing this event together. my name's michael beckel, i'm a reporter at the center for public integrity here in washington, d.c. and in terms of this notion of candidates doing the direct solicitation versus their campaigns, judicial races are not something i'm quite as familiar of as say federal candidates running for office. so i was curious how professional are, you know, we've got these 39 states that have different things.
you know in all of these cases, are we assuming that there's a judge, there's a campaign manager, there's a pressure or are in some cases some of these races really just sort of one person operations and what's a practical difference versus the dpan campaign making a solicitation versus the judge making this ask? >> while you guys are thinking of a response to that go online and look at some of the websites. i mean, for example some of the justices in texas, some of the websites that they have up are as professional as -- they're not one person shows. i haven't done any empirical studies, but from what i've seen, not just in texas but elsewhere, they're often very sophisticated operations because there's more money available. i mean, it's an investment,
right, if you're a judge and you want to stay a judge or if you're a judicial candidate and you want to stay a judge that's part of the price of doing business which ironically is something that the donors are saying, that they want to get something for what they pay for and they expect to get something for what they pay for. my sense is just from writing about it a couple years ago and last year, it's a very sophisticated operation at this point in most cases. >> and i say there is a big difference between states and between races so we've documented many state supreme court races are just multimillion dollar affairs. they are huge sophisticated well-funded expensive operations. going down to say, the case we're discussing today you might have a much smaller affair where not much money is raised and spent in a case and perhaps you could have a very small campaign committee of only a couple people. one thing i would say is it
doesn't seem especially onerous to require an aspiring judge to read the rules and follow them. if they are unable to do that, i think we should question their fitness to sit at the bench. >> we've stumped you? no more questions? well, great. we appreciate you being here this morning and listening to us and hopefully you guys have taken something out of this and we'll be around after to answer any questions.
friday american university's public affairs institute host a conference including remarks by university president neil kerr win on lobbying and the regulatory process. watch it live at 10:00 a.m. eastern time here on c-span3 and at c-span.org. friends, colleagues countrymen, especially the people of ohio's 8th congressional district thank you for resending me here and let's today welcome all of the new members and all of their families to whatty with all know to be a truly historic day. >> today is an important day for our country. many senators took the oath this afternoon. 13 for the first time.
and a new republican majority accepted its new responsibility. we recognize the enormity of the task before us. we know a lot of hard work awaits. we know many important opportunities await as well. >> follow the gop-led congress and see the new members. the best access is on c-span television, c-span radio and c-span.org. new congress, best access on c-span. republican charlie baker has been sworn in as massachusetts' 72nd governor. in his inauguration speech he talked about education and economic development. this is a half hour.
>> thank you. thank you. thank you very much. thank you. thank you. mr. president and members of the senate, mr. speaker, members of the house of representatives, lieutenant governor polito, members of the governor's council and the cabinet, welcome, folks. chief justice from the judiciary, constitutional officers, constitutional officers elect, thank you for being here. former governors, well swift, romney former senator scott
brown, governor christie governor raimondo distinguished guests angela menino and jen soluchi. i've known and admired you both for many years, and i always really appreciated the joy and the integrity your husbands brought to public service. there were lessons there for all of us. thank you very much for being with us today. to my fellow citizens and other distinguished guests my thanks to all of you for being here. it is with great humility and
high honor that i assume the office of governor of the commonwealth of massachusetts. now, i'm well aware of the authority and privileges that come with this office but they're inconsequential in comparison to the responsibility of serving and protecting the people of this great state. and the obligation to always live up to that trust. the people have vested me with the title of governor for the next four years. but i'm also the holder of a number of other life-long titles that i'm proud of. son, brother, husband father and neighbor.
those titles have shaped the values and the vision that i bring to the corner office. that bible that bible that i placed my left hand on a few minutes ago is the same one my mother held for my father 46 years ago when he was sworn in as assistant secretary under then u.s.-transportation secretary john volpe, former massachusetts governor. in a moment like this, there's no way to thank your parents for all they've done for you except to say, dad, i love you and mom both. i am very much who i am today because of you, and i wish mom could be here to see this. i especially want to thank my wife lauren.
for her love for her counsel, for her sense of humor and her endless support. i knew when we got married 27 years ago that i was a lucky guy. but after 27 years and three wonderful kids, i know that i am truly blessed. on behalf of the people of massachusetts, i want to thank governor deval patrick for his service over the past eight years and wish him godspeed. i want to sincerely thank all our public safety officers, first responders and corrections officers for the work that they do.
it's a service that's always challenging and at times very complicated and with very few exceptions these men and women do it every day with great skill and professionalism. i also want to thank and salute all those men and women from the commonwealth who have or are serving in our country's armed forces. since 9/11 -- since 9/11, many citizens of massachusetts have answered our nation's call to service and serve with distinction. and when men and women serve so do their families and we muss never forget that. as governor, these men and women
and their families will always be in my prayers. mayor walsh, i want to thank you for giving us this opportunity to participate in this event today in your city. and we wish you nothing but the best of luck in your service on behalf of the people of boston and the years ahead. to the people of france our thoughts are with you during this difficult time. our commonwealth is filled with hardworking, talented and inspiring people. we're a global leader in health care biotechnology, high technology, education finance, energy efficiency and advanced manufacturing. and we've led the way for this nation on issues ranging from
health care quality to reform equality. some of our toughest challenges have been ignored lost amid the successes or become the equivalent of kicking a can down the road because they're not politically convenient or easy to fix. from having 1500 homeless families assigned to hotels and motels, dozen of lapses in performance that are frustrating for many and in some cases devastating in consequence. i know we can do better. the time has come to write the next great chapter in the history of this great commonwealth. to build on what makes us great and get much better and what doesn't, lieutenant governor
polito and i have created a talented diverse, experienced bipartisan cabinet and staff. they will approach their message with a passion and a thoughtfulness to make massachusetts great, and they understand the policy pronouncements without follow-through amount to empty promises. former mayor tom menino taught us all many valuable lessons. he believed government was about high ideals. but he also equally believed that basic services mattered and that every detail counted. when people have to wait for hours to conduct a simple transaction at the registry, they're not being served. when thousands of families continue to be confused and let down by the health connector, we're not paying attention to the details. those are but two examples. we will challenge the status
quo. we will look for and try new approaches. we'll recognize they may not always work and when that happens we'll acknowledge it learn from it and try again. i believe our actions will be heard in many ways but the loudest of these actions will initially be in dealing with immediate budget deficit building a job creating economy everywhere in massachusetts, closing the achievement gap in education and fighting opiate addiction and revitalizing our urban centers. with respect to the state's budget, no one understands better than i do that our
constitution requires that it be balanced. that responsibility now rests with us. history will record a budget deficit exceeding half a billion dollars is being transferred to our administration. if we're honest with ourselves, we can't blame this deficit on a lack of revenue. we have to recognize that this is a spending problem and that dealing with it now will make balancing next year's budget that much easier. we will hold the line on taxes we're already demanding enough from our hard working people. and we will protect cities and towns and fulfill our promise to end the cut ss in local aid.
otherwise, everything's on the table. we look forward to working with house speaker dileo senate president rosenberg and members of both legislative branches to close this gap. while there are efficiencies to be gained and structural changes to be made there's no doubt we have to make difficult decisions and we will work collaboratively to do so with great sensitivity and careful judgment. but growth is the biggest solution to any budget problem. we have a 5.8% -- we have a 5.8% unemployment rate here in massachusetts. but that's a cold-hearted statistic that ignores the 200,000 people seeking work, the hundreds of thousands of underemployed and the tens of thousands who have dropped out of the workforce altogether. and there's no single initiative
that can start and sustain a job creating economy, but there's clear evidence that we're too complicated, too expensive, too slow to move and make decisions and on this we must and can do better. our administration will work to reduce red tape, streamline regulatory requirements on start-ups and establish businesses and we'll report regularly on our progress. health care costs are an enormous burden for everyone. they drag down our collective ability to grow and hire more people. be will pursue many paths on this one, but the simplest insuring full price and performance transparency is long overdue. the same service in the same neighborhood with the same outcome with the same person can vary in price by as much as 300%. this must change.
there's also a direct link between economic growth and sustainable affordable supplies of energy. as we begin this new year families and businesses across new england are being hit with unprecedented increases in their energy and electric bill. at exactly the same time energy prices are falling across the rest of the country. this increase is being driven in lark part by inadequate delivery systems, the result of poor planning and coordination. i look forward to working with my colleagues here in massachusetts and the legislature and people like governor raimondo of rhode island and the other governors to solve this problem while we continue to reduce our carbon footprint. now, i'm the proud product of
massachusetts public schools, and to this dayic still name almost every teacher i had growing up. they moved me, they challenged me and they made me feel like my opinion mattered. across massachusetts -- go for it. across massachusetts, there are many talented and inspiring educators doing for their students what their predecessors did for me. i was in lawrence yesterday, karen and i were both there, witnessing firsthand the progress that's been made in just a few short years there. and despite all their issues, and they have many, a renaissance is under way in their public schools. attendance is up dropout rates are down. test scores and graduation rates are up. the school day is longer and lawrence is hardly alone. there are exceptional schools in many of our most disadvantaged neighborhoods throughout the
commonwealth proving they can get it done for kids no matter what their circumstances. but other schools really do need to step it up. for the children and the families that they serve. poor performance given the dramatic success other schools have demonstrated, can no longer be tolerated. while traditional public schools will always be the backbone of our education system, we need more high performing public charter schools especially in underperforming school districts to complement them. as i speak today there are 45,000 bay state kids and their parents on waiting lists for these schools.
45,000. it's wrong for any of us to stand on a front porch or in a city neighborhood sympathizing with a mom or a dad when they tell us their child's not getting the education to succeed in life that they deserve and then oppose lifting the charter school cap or making the kinds of changes that are being made in places like lawrence to ensure that every school is great. last year, governor patrick called opiate addiction a public health crisis. he was right. it is a crisis. it's one that cuts across every community in the commonwealth. several months ago i met john and stephanie green of easton. after a routine medical procedure their 19-year-old son evan was prescribed opiates for
pain. slowly and unknowingly he became addicted to them. when the prescription ended he turned to heroin. over a period of years john and stephanie tried as hard as any parents could to help their son, who was in agonizing yet all-too familiar story. tragically, evan fatally overdosed almost a year ago to this day. now, as a parent, my heart goes out to john and stephanie for their devastating loss. as governor, i intend to tackle this problem head-on because too many families -- thank you.