tv Washington This Week CSPAN January 10, 2015 3:00pm-4:01pm EST
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 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. that is a basic overview of the case, and we can get into more at question time. >> thanks. tracy, 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. my role today is principally as an empirical legal scholar. i ask 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? so that's what i do. i'm one of the members of -- one of the amici in a brief filed by empirical scholars and law political science and economics. and political science.
two of those are my field of law, and political science. but i also teach law. as andrew mentioned. all law school classrooms are fantastic. at least the ones i teach in our fantastic. 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 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 held over on bail or 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 are 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. so while trial judges are not that visible to most of us, most of us are focusing principally on the highest courts in 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. although so often the focus, of course necessarily is on the courts that grab peoples attention -- the u.s. supreme court being the most visible example. so let me talk about him." research -- talk about empirical research on the relationship between judicial selection method and judges and their behavior. so a substantial and growing body of research shows how this affects judges. we are talking about state judges because federal judges
have always been chosen for life tenure and an appointment with confirmation. presidential nomination with advice and consent of the 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 recipient's subsequent actions. let's look at a few examples. the largest city to date focuses on state supreme court rulings in 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.
contributions increased the likelihood of a vote for a business facing an individual or a business defendant in a tort suit. one study estimated that the impact of $1,000 contribution is a .35 to .69 percentage point gain in the probability of success. and businesses and business groups have learned from their success. we see dramatic increases in the spending in races. businesses are 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 in 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. but studies have also looked at other groups, groups that often disagree with the business interest, such as unions and other prolabor groups, and have found that those donors are also likely to gain a greater number of favorable votes when contributions rise. and it's not merely the fact of donations, it's the amount of money. that matters. if two donors face off, 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 -- faces the challenge of trying to demonstrate the causality direction is from the
contribution to the behavior. right, think about studies you're already very familiar with of the behaviors of members of congress. is it that the donors are affecting what members of congress do? or is it instead that donors are good at picking members of congress who are likely to support their positions? and empirical researchers have tried to hone in on that question to test the direction of causality. and specific research has shown that the theory that the theory that 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. right? so as the fact, whether you -- the fact of voters selecting whether you continue in office or not or pick an opponent in contested elections makes more salient the effect of 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. so these donors clearly think there is an impact. 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. and these judges -- many states have mandatory retirement for judges. we do not in the federal system, but 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 amicus brief we filed, but
that's an overview of the relevant empirical 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. actually i find this to be a , difficult, interesting case. i don't think, contrary to andrew's take, that one's view on citizen's united 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. you see all parties reporting to adopt strict scrutiny as they -- it even 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, its 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. so i think there's 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 fundraising 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. so you have a 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. i had not realized it resulted in no contributions, but that says something about the power of mass mailings. something i've learned about the hard way, as well, with my own organization. [laughter] so 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 are urged this. -- of the parties urge this --
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. that would be unfortunate for her. it would mean that her loss would remain in effect even though the underlying reasoning of the court would be so clear that she wins. -- so clear that she wins on this narrow issue that we don't decide the broadser issue. the court says it takes, it grants cert in order to -- to resolve these issues, not do error collection -- correction. >> 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 -- it's brief in support 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, then 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, than to the incoherence of some of the views on the left. so with that, i'll hand it over. >> thanks, ed. >> thanks. >> talking about why the williams-yulee case affects 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 arms race between these judicial candidates. when these candidates become elected, they find themselves oftentimes trapped in a culture that then perpetually challenges their ability to be fair and impartial. to this extent the yulee 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 that sometimes are 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 1970's. three former chief justices in
the florida supreme court and four 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 1970's, 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 ghostwrite 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. [laughter] 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 1970's. 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 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. 63% of respondents said their confidence in the courts would be lowered if judges were able
to personally 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-1970's 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 yulee case presents us an opportunity, a window into some of the broader issues facing fair and impartial courts, including how we select our judges. because 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. ed, 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. >> the notes are 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, are 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 would welcome them. >> 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. and 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 is applied, 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 are two critical state interests at stake. one is impartiality. that goes to the studies tracy talked about, 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 fair 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 observed. and indeed, as i mentioned not , necessarily conscious. it is not that we are hypothesizing that judges are intentionally favoring these people. 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 them 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 matt 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 effect of 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 every 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. an all this stuff. has somebody corralled her and asked her to chime in? >> i haven't.
[laughter] >> ed hasn't. >> i believe that she is riding 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 in particular that 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 conducted. >> is the ninth circuit 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. we put in amicus brief in that case as well. 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 fundraising 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 granted cert on williams-yulee, the ninth circuit had agreed to take that case en banc 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 stayed that case pending resolution of williams-yulee. >> 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. i think if you just focus on one and and emphasize its flaws, you can ignore that others have their vulnerabilities, as well. >> just to put a bow on it. senator connor has put out a plan, a recommended plan of how to select judges. while it retains an election element, in that there are
retention 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 while she continues 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. >> can write thank you notes. can volunteer human labor. those are some of the arguments made. >> 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. so i guess the question i have is, is florida at the vanguard of -- is this cannon the most aggressive in the nation? are there other states that have 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 is, 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. and i think 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 for 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 diciplinary 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. when he could not stop 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 that 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. including some on the supreme court. 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 onto 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 -- several proposals for ways to strengthen recusal practice. one of the concerns, and it's a fair point. in the case versus massey, justice roberts in his dissent, he goes through a very long list of questions that show that at the very least it 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. so i think recusal, while very important, is certainly no panacea. and importantly, recusal is a
case-by case basis. and when we're talking about the public's confidence in the courts and how personal solicitation 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 negative 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 for a couple of reasons. one is that the effect of business contributions so be -- is to 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 court's 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 trial judges recuse themselves, who is going to hear the case? that certainly would be in a court like ms. williams-yulee 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 i think there also is 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 they're 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 direction of causality when discussing the effect of campaign contributions from business and most reisn'tly you seem to be adopting a particular view of the direction of causality.
so -- >> it's because she's sitting near matt. [laughter] >> well, i would just say the study that i'm thinking of that looked at business decisions was the one that did the best job of demonstrating direction of 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 the 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. the microphone is there, and so is the question. >> 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 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. i'm in, i think 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. i think it's a difficult thing to connect to people. >> i can add a little historical context. if you would like the longer , story there is an interesting amicus brief in this case filed by professor jed shugarman. you can read it on scoltus 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 1800's, 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 1800's 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. and so elections were very much an attempt to promote a more independent, impartial judiciary.
so 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 judges. 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 salience 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. [laughter] >> 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. i mean 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 $40,000 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 at 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 think about the massey case, i think there was a trip to the south of france 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 testing 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. the theory behind the effect on 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 or especially in a post-citizens united world and 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. and so that's the theory behind it because you're certainly right. prosecutors are not substantial donors to judges, and in 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 and the campaign ads that rise up against them. and, you know 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 who care about 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. i think that's going in one direction, these ads are going in the other direction. and 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 if there were a broader band. -- ban. >> yes, sir. >> we're making it 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, 2.5 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 is -- 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
-- and our immediate -- and our intermediate apple it judges. -- appellate judges. 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. but 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. >> it sounds like quite an incentive to contribute heavily 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
gives the opposing counsel the option of keeping the judge in case they're conflicted about hitting the maximum. 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 is a treasurer? or are in some cases some of
these races really just sort of one person operations and what's a practical difference versus the 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 become 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, as we have 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 the bench. >> we have stumped you? no more questions? well, great. we appreciate you being here this morning and listen to us. and hopefully you guys have taken something out of this. we will be around after to answer any questions. [captions copyright national cable satellite corp. 2015] [captioning performed by national captioning institute which is responsible for its caption content and accuracy. visit ncicap.org] >> here are some of our featured programs. on "afterwords," the pitfalls of
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