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tv   Judicial Campaigns  CSPAN  January 12, 2015 4:35am-5:46am EST

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e. i mentioned earlier, it is about following the bread crumbs. maybe some online social networking websites or a piece of information from our internal systems and a piece of information from public records. and when you tie that altogether, you are able to have a much more comprehensive idea of who law enforcement will be interacting with that evening. >> so, julie, because you are so wonderful, i'm going to ask you two questions. the first is could you just talk a little bit about the difference in using technology to go after demand for child porn, versus demand for child sex? and then also, part of what i'm excited in the work you are getting started to do is around child welfare. so if you could just talk a little bit about the work that is ahead of thorn in looking at this intersection between child welfare and child trafficking?
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>> so i should actually correct myself. in the reference to child pornography -- and staca is -- so similar to the effort you are launching to change the term from child prostitute to a child victim, there is an effort to change the reference to child pornography. because it is not pornography, it is child sexual abuse content. it is the documentation of violent abuse of a child. so it is very different. and that is why our child sexual abuse deterrence program has been under way for three years and our john deterrence is just getting started. because it is more black and white with child sexual abuse content. and when you are online, you need -- when you work online you have to indicators, right? you need to know key words or behaviors. and with child sexual abuse content it is very clear.
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there are certain words that mean certain things and that allows you to target and reach people and intercept them more clearly. when it comes to child trafficking and child victims, it is massed in this perceived legal framework and the escort industry. and so trying to find and communicate with people who are seeking children or even participating in that and you want to communicate with them and educate with them the realities of the sex trade and how children are involved, you need -- it is more complex. and you have to have a deeper understanding of the language that is used and how -- what online behaviors are. and so that is -- it has taken a bit more care and more time to understand that. but i would also say, it is -- i think with john -- reducing demand and deterrence, there is a cultural shift that has to
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happen. i think most people will say buying sex from a child is wrong. i don't think everyone will say buying sex is wrong. and so we have to, as a country, kind of have an open dialogue and discussion about the fact that children are caught up in this. and this person who presents as 19 is probably 15. and that is where it is about kind of a cultural shift of a dialogue in our country about what the realities are. and some of the people are adults. we are talking about children here. and so i think kind of john deterrence, you have to have more of an open dialogue in our society about the realities of what is happening and who these children are and how it presents not on face value of what it actually is. and that gets into what the
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messaging is online. so your message to someone who you encounter through a demand effort is very different than the message you have -- you're giving to someone looking for child pornography because that is a direct -- you need to get help now before you harm someone. and so those are the differences. to your second question about foster care and vulnerable youth. so we have started to explore this topic as an organization. we all know that children in the foster care system or who have been part of the foster care system are at much higher risk for trafficking than the general population. and so we are convening a group early this year of leaders in the technology community with leaders in -- including malika in foster care and vulnerable children to talk about what could the role be in creating a stronger safety net for kids.
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you know, again, there are ways where you can either educate people who are supporting these children and create a stronger network of people nationally that allows a stronger safety net. there are ways where you can provide technology tools to the kids themselves so that they have a way to reach out for help, similar to be free. what is that way when the kids are ready to reach out for help, they can reach out and it can be quick and direct. i also think -- just when you hear the statistics, there are some countries that have done studies and 90% of the kids coming in from trafficking are coming out of the foster care system. this is just shocking. and so there has to be a role there to create kind of greater transparency, greater connections. i think also if you have data around these children, like
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their phone numbers or other digital information, and you marry that with what is happening on escort pages, it speaks to my original point of being much more -- being much more strategic and finding the children when they run and get into a vulnerable and bad situation. so it is an area of exploration for us. many people have been doing a lot of work on this front outside of technology for a while and what we're trying to do is bring these two worlds together and have a discussion to see where the tech community can be a part of that as well. >> a needed conversation. and know that the child welfare community is really excited that there is a conversation around technology and too many of our child welfare children who have become our lost children. i want to thank each of you for the tremendous work you all are doing and for being part of this panel. i think it is a great way to end the day, to be able to have hope about the work that is
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being done in technology to harness the technology for good. and i would also like to ask mrs. mccain and susan, if you could come up and close us all out. >> i'm going to let cindy make the final statement here. i just want to thank everybody who has been here, who puts in the time and the trouble. and there has been some great moments and moments to take away. i had somebody from google who was sitting in here who caught me outside and said, oh, my gosh, i've never been in something that has impacted me as much as listening to this panel. so thank you so much for really forcing us to stop in the course of a day, to wrap our hearts and our minds around those young children. and so these are my two heroes. but i have one other hero, and i want to thank lee dunn from
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google helping to put this together. so lee, thank you very much. >> and to the rest of my googlers. and here, cindy. that is all i want to say. >> no, thank you. oh, my gosh. thank you very much, susan. this was -- a remarkable morning. and know for those of that you are in the trenches every day, i want to thank you. this is a difficult job and it is a difficult task that we face. but we can do this. and with great minds and as you see the country is beginning to get together on this and there is a swing now. people are hearing it, they are seeing it and understanding it. that is the job we have been able to do now. but we have a lot more to do on the horizon. malika, you are amazing. oh, my gosh, talk about a trench worker. you're my hero too. thank you so much for being here and being a part of this.
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[captioning performed by national captioning institute] [captioning made possible by wptz-tv] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015] nick nuck nick captioning performed by the national captioning institute, which is responsible for its caption contents and accuracy. visit ncicap.org [captioning performed by national captioning institute] [captions copyright national
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cable satellite corp. 2015] my name is andrew cohen. 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.
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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
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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
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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.
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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 tracey 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.
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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.
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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 williams-yulee 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
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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
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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
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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
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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.
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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. tracey, 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
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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-yulee. 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
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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 in fact, for the average citizen they are the law. as a consequence we should be particularly concerned and interested in the rules that govern how we choose trial judges although so often it is on the course that grabs people's attention the u.s. supreme court the most visible example. i will talk about empirical research on traditional selection method and judges and behavior. a substantial and growing body of research has examined how judicial elections affect the behavior of judges and
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particularly we are talking about state judges because federal judges have always been chosen for life tenure and appointment with confirmation, presidential nomination with advice and consent of the senate. empirical scholars have found there is a strong relationship between campaign contributions and journals voting. the studies specifically demonstrate that the identity and the interest of donors impact the decisions judges make. that is money biases, whether consciously or subcon shulgsly the recipient's subsequent actions. let's look at examples. it found the greater the contribution the fact and quantity from business interests the higher the probability that a decision would be favorable to those businesses and businesses in general holding other
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variables constant. contributions from pro business groups increase the probability holding all else equal of a vote for business facing an individual or business defendant in a tort suit. one study estimated the impact of $1,000 contribution is a .35 to .69 percentage point gain in the probability of success. businesses and business groups have learned from their success and we see dramatic increasing in the spending by those interests. businesses are the single large eggs donors in state supreme court elections. other cities have revealed the relationship between the identity of law firm and type of firm and decision of judges on state supreme court. if plaintiff type firms, trial lawyers groups or firms that often we are talking about litigation firms donate to judges the judges are more likely to support plaintiff en
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masse litigation. law firms who contributed to judge campaigns gain better rulings in despites with arbitration and more likely to win appeals in tort suits. businesses and law firms are the largest source of contributions for judges. but studies have also looked at other groups that often disagree with the business interest particular such as unions and other pro-labor groups and fond those donors are also likely to gain a greater number of favorable votes when contributions rise. it sis not merely the fact of donations, it is the amount of money that matters. two donors face off and research shows the donor who contributed more to the judge's campaign would be more likely to succeed. now, these studies as most empirical research does faces a challenge of trying to
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demonstrate that the direction of causality is from the contribution to the behavior. think about studies you are very familiar with the behaviors of members of congress. is it that the donors are affecting what members of congress do or donors are really good picking members of congress who are likely to support their positions. empirical researchers have tried to hone in on that question to test what is the direction of causality. specific research has shown that the theory that the direction is from donor to judicial behavior has support in some specific ways. for example, studies have shown judicial behavior changes as elections draw near. as the fact of voters selecting whether you continue in office or not or pick an opponent in chemicalsed elections makes more salient the effect of your decisions on your future you change what you are doing. then you reset back after the
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election is over. they are more likely to hand down stiffer sentences in criminal cases as re-election draws near or support prosecutors and critical procedure disputes and less likely to grant repraoefs in capital cases. if you focus on undorns and their perception of the direction of causality, they have given to judges who didn't previously support their position. donors have given to judges who face no opposition. these donors clearly think there's an impact. finally and this is one of the most persuasive findings judges' behavior is different if they don't face re-election. many states have mandatory retirement for judges. we don't in the federal system but most states have some sort of mandatory retirement. judges who won't face re-election because of mandatory retirement are not affected by past campaign contributions and judges who did brave
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differently. i'm happy to answer more questions about this or the amy cuss brief but that is an oversraouf the relevant empirical research. >> thank you, tracy. >> i think i have been asked on this panel in part to be con contrarian contrarian. i find this to be a difficult interesting case. i don't think, contrary to andrew's take that the view dictates a view on this case. let me highlight 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 purporting to adopt strict scrutiny as they acknowledge closely drawn scrutiny a lower standard that might apply. i believe this debate between the two standards illustrates the incoherence of the view. but the florida bar case it is
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brief. it is difficult to see that it is actually applying anything remotely like strict scrutiny. we it may reasonably conclude, has wide discretion, could reasonably believe. there is one thresh hold question, what standard of review applies. i think the florida bar has a good argument that the person to person solicitation presents special dangers of quid pro quo or perception of quid pro quo arrangements. it also happens that person-to-person solicitation involves special powers of -- it is more likely to result in favorable responses to fund-raising requests for reasons independent of the quid pro quo possibility. any fund-raiser will tell you that you want the principal to make the ask for the human
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reluctance to say no. a difficult class of these two points points. that said, as matt pointed out the particular petitioner in this case who has been penalized below did not engage in anything that could remotely be called person-to-person solicitation. she sent out a single mass mailing and something about the power of mass mailings in my own organization organization. so i think there's a good question whether the court will even address this broader issue on whether this rule against personal solicitation is constitutionally permissible or not. it is possible that the court might say indeed i think some of the parties urge this, that
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whether or not this general rule violates the first amendment it can't constitutionally be applied to mrs. williams because of conduct she engaged in is nothing of the sort that implicates the quid proe quo concerns. it is possible the court could dismiss it as improfitly granted because it doesn't provide an opportunity to solve it but that with mean her loss would remain in effect even though the underlying reasoning of the court would be so clear that she wins and on the side of the broader issue. but it said it would grant cert in order to resolve the grander issues not to engage in error corrections. >> she didn't win the election either right? >> right. >> she lost the election and lost the case? >> right. >> just to be clear. >> i emphasize all my views are
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tentative. the reply brief hasn't come in yet. the hc hrufrpblgts in the brief in support pointed out the experience of some 10 states or so that have judicial elections and don't have this bar on personal solicitation by candidates suggests that there is no compelling need for this. the last point i would like to meet to be provocative i think there sis a tension between the brennen stphaers position that -- center's position that they are so different and general view of judging 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 passes and values. as president obama said in his
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notorious statement hard cases can only be determined on the basis of one's deepest values and core concerns and perspective on how the world works and department of one's empathy. if that is a view that folks on the left adopt and i don't think the position they are arguing that judges are different from legislators coheres that may go less to the merits of the case as to the incoherence of views on the left. with that i will hand it over. >> thanks, efrd. >> i'm going to talk about why the uhly case is different and new polling data that shows the impact personal solicitation bans have on public confidence in the courts. from a 30,000-foot view there case is important because it is
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a good re-election of the new judicial culture we have been talking about t. is a culture where judges are being forced to raise vastly more money than ever before which is becoming an arms race between the judicial candidates. when they become elected they find themselves often trapped in a culture that then perpetually challenges their ability to be fair and impartial. to this extent the case is a good reflection because it comes out of florida one of 39 states where some judgments are elected and this puts the candidate who run in a pretty challenging position. on one side they have to be because they are elected representatives reflecting the best interests of the community and interests that sometimes are sending in a lot of money 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 in the 1970's.
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three former chief justices of t the florida supreme court and four past members of the bar wrote an amicus brief to show how the ban didn't come about because of some hypothetical concern about judicial ethics. tfrpls not an issue in a neighboring state or something their political leaders read about. in the 1970's a full majority of the florida state supreme court four of seven justices will to resign over corruption scandals. they involved the justices intimidating lower court judges attempting to overturn bribery convictions for campaign contribute storms. allowing contributors to ghost write opinions from the court and probably the most high profile case of a justice who was flown to las vegas by a dog track owner that had a case in front of a court and a reporter from the miami-dade area
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followed him to vegas and gets a shot of the justice on the dog track rolling dice with a giant cigar hanging out of his mouth. this led the political leaders to talk about personal solicitation bans. the importance of the bans didn't fade with the corruption khaorpblgs and with the scandals in the 1970's. new polling that justices in the brennen center have collected demonstrates the importance that personal solicitation bans have today and it is not just in florida. in the past polls of justices have shown about 95% of people think campaign contributions affect judicial decisions. even more worrisome about half of judges agree with this statement. but our 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 that these bans are effective at
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maintaining public confidence. 62% of respondents said their confidence in courts would be lower if judges could personally solicit campaign contributions. this group 81% said their confidence would be lowered a great deal. so, i think that data like this make it very clear personal solicitation bans do have a real impact on public confidence and show there is a real measurable value in contributing skwrupblts from asking for contributions directly. i will close by saying while these bans are important for fair courts issue florida knew it then and the majority of people still think it today. the bans are still only one part of a larger solution and much needed solution. keep in mind florida's ban was passed in the mid 70's as part of a complete reform package the crown jewel of which was the fact florida changed the way it selects its supreme court judges from direct election to a system where candidates were evaluated
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based on merit and ultimately appointed by the governor. this is known as merit selection and used in about 24 states and here in d.c. i think that overall the uhly case presents a window into some of the broader issues that face fair and impartial courts including how to select judges because in this culture of high spending special interest influence judicial elections more people, judges the advocates, academics, political leader are realizing that something has to give more and more people are realizing that programs the idea of electing judges is becoming a broken idea and the notion that this is something that will fix itself is harder and harder to believe. >> to my left ed has been writing some notes to himself so i will give ed a first shot and we will go in that order to respond to any of the comments you heard from scott or anyone
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else. >> just to keep track of what we are saying not necessarily to disagree tracy raised the question of direction of causality in terms of are contributors finding folks who are going to be as a matter of judicial inform sympathetic to their perspective or being influenced by the contributions. i will be interested in what some of these studies have to is say. i will say one comment, matt talked about the fact that there are other restrictions on judicial speech i think that is different from the other
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examples. i putting aside broader notions of judicial philosophy and how we select those there is general agreement the nature of the judicial office differs from life and executive positions and this is materially 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 people that got them into office for a judge in terms of the parties before them that is flatly unconstitutional to favor one party over another because they support you. you are required to apply the law to the facts of the case.
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one main question here is with the nature of the judicial office differing from executive and legislative positions can we regulate them to account for the due process concerns raised by the judicial office. 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 attempt to regulate. here there are two critical state interests. one is actual impartiality and that goes to the studies tracy talked about whether or not there is bias introduced into the judicial process through campaign contributions. the other and equally important i think, is the appearance of impartiality and public confidence in the courts.
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that gets to the polls and studies scott was discussing. the supreme court has emphasized over and over that the judicial branch depends critically on the public's confidence in the courts. the old adage the executive has the swort, legislature has the purse and judiciary has the public's trust. when we see these lie numbers indicating that the way these elections are happening now is undermining the public confidence that courts are fair and impartial i think that raises very important concerns above and beyond whether or not judges are favoring contributors over noncontributors. >> tracy? >> i want to say a country of couple of things. i want to build on things both scott and matt said about florida in particular. i think that to the extent you want to understand the rules in
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florida you need to appreciate that florida is not unique in the amount of change there's been in the methods of judicial selection. while we are accustomed to the federal courts 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 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 of florida faced of corruption and bribery and the like. so, we should think about this canon in the context of states struggling with real problems they have had beyond research like the research i talked about that find a relationship that might be more sufficientbtle and not necessarily conscious. it is not we are saying they are
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intentionally favoring the people but the in. ability if you ask for money from someone and they give it to you psychologists identify it as a sense of didn't or obligation and you feel like you plus do something for that person in return. in speaking about in particular the personal solicitation because ed raised this and it is 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 is significant and we don't have empirical research that tries to loan in on that distinction between any contribution and whether the contribution is the request of -- is in response to requests. but there is a lot of psychological literature like that. i mentioned that when you ask for something and someone provides it to you, you do. a sense of obligation to that individual. and i think that the judges, most judges that i have spoken with -- there is quite informal
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-- would say they are 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 give you money for the campaign. so the personal solicitation ban strikes me as a relatively modest attempt to rec late the effect of campaign contributions on behavior of judges. >> i have a couple of questions i'm going to throw out and my fellow panelists are free to answer them. i haven't read every brief bun of the initial questions that springs to my mind is where is san dry day o'conner? has somebody gotten to her and has she presented her opinions we think we know. she's dedicated her post-court life to the idea of judicial selection and has warned about the dangers of judicial
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selections. has somebody corralled her and asked her to chime in? >> i haven't. >> ed hasn't. >> i believe that she's riding circuit in the ninth circuit right now so it would be improper for her to comment on the case while it is pending. i will note that she was one of the five judgments in the majority in the white case in 2002 and in an interview subsequently several years later she was asked after she stepped off the court if there were any decisions in particular she regretted and she mentioned white as one case where she felt she voted the wrong way and explained that she was concerned that the case contributed to the increasingly messy atmosphere of judicial elections we have seen. so, i wouldn't purport to speak to her but i think it is safe to say she's said repeatedly she is
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concerned about state judicial elections as currently conducted. >> is the ninth skeurbgt one that led with others when we talk about that split? >> there's an interesting case called wolf ging versus cancannon and i thautought that case would have been a better candidate for supreme court review in which a three uphill 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
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court granted cert the ninth circuit agreed it take it and it was vacated so there was a decision that struck there canon and others down and they have stayed that pending resolution of this williams uhly. >> some has focused only this particular case and some addressed the broader issue of judicial elections. on the broader point i want to emphasize that every method of judicial selection has its advantages and disadvantages and i think it would be important to sort through what those are. what i find a little odd i thought those who oppose judicial elections at the state level they tend to favor the so-called missouri plan merit selection rather than something more along the federal plan. that is, the missouri plan gives power to local bar groups to i
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think it is a variation of state to state so i'm speaking generally 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 my broader point is any system you can look at incentives and disincentives it has for judicial candidates and see sraplgs and disadvantages. i think that if you just focus on one apbdnd emphasize its flaws you will ignore the others have vulnerabilities. >> sandra day -- con nor has put out a plan of how to select skwrpblgs and whale it has an hrebgselection element she is put
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her name behind a plan that gets rid of the direct election of judges. >> all while sitting 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 the argument for the folks who who support overturning the ban who conditioned it is so underinclusive and measly in its attempt to prohibit this practice or to solve this problem that it is uncanal. so, you ban the direct solicitation but the campaign manager can solicit and the candidate can basically get around the information and get the information about who donated and so forth. >> write thank you notes. volunteer.
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those are the arguments made. >> right. and as you read through them you begin to realize on the one hand florida says we have it problem that we need to solve and here is how we have chosen to solve it and then you say it is not much of a solution, there are so many sort of weesely ways around it that it is no solution. i guess the question i have is, is florida at the vanguard of -- is this canon the most aggressive in the nation? have other states gone beyond what florida has done to more aggressively prohibit the direct campaign contributions? and how do you think the court is going to -- how do we think the court is going to look at this underinclusiveness issue? >> there are states that go further. there are states that prohibit their judges from even learning who contributed to their campaigns. i think that one of the issues with trying to prohibit the additional elements you
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mentioned with underinclusion is in practice that could be a very difficult thing to do. the nice thing about florida's rule is it is fairly bright lined, there is a lot less work going into enforcing it. i think that in terms of the personal solicitation ed made a really good point that it is more effective to have your principal ask and i think particularly when the principal is a judge there is an element of coercion that, whether intended or not, is felt by donors. in some cases that have come up at other levels there have been business groups that waited and said one reason they support the personal solicitation ban is it is easier to say no to a campaign manager than it is to a judge. i think that -- one other thing i think is interesting is that
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one reason many campaign finance restrictions are struck down is the court is suspicious that they are not really about getting rid of construction. this they are in practice incumbent protection and this is an interesting provision where certainly a non judgejudge candidate would in many cases like to make a direct solicitation but it is particularly coercive for a donor to be asked directly by a judge that they are likely to appear before. and this is a provision that is un unlikely to be a wolf in sheep's clothing. it is really about protecting incumbent rather than the judicial integrity. >> if you look at the bigger picture about half of all campaign contributors are lawyers, lobbyists, business interest. so they are giving to the justices in the first place. when the code was put into law in 1973 about 20% of
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disciplinary actions that srhave been related to personal solicitation bans. they have been directly tied to this provision. if you look at why it was put in in the first place and there were three campaign contributors convicted of bribery in a lower court and a justice tried to stop the bribery charges and when he couldn't it went to the florida supreme court the judge sat and voted to dismiss the bribery charges so it was a direct solicitation there. another example there was a golfing friend, a golfing buddy of a justice who personally asked if he could write the opinion about a public utilities case in front of the court. so i think florida properly identified these are cases that can be tied to the importance of cutting that personal element to the relationship was critical. >> one other question and 10 i will alternative r turn it over to you guys is the issue of
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recusal. the folks who again want to get rid of these sorts of ethics rules say the obvious and easy thing is to promote recusal. the uphill who sis 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 far judges recuse themselves when they should including some on the supreme court. and but i'm wondering what you think the issue of recusal how it will play out either in the oral argument the or -- arguments or the decision. is that what the supreme court will grasp on to as it sass we need to do something? >> if they do it would at least
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be e while -- at the brennen center theyt is very important. we agree there's a lot of room for improvement and we have proposals for the purpose ways to strengthen the recusal practice. one of the concerns and it is a fair point in his dissent in massey justice roberts goes through a very long list of questions that show that recusal at 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 defend retention shallow. i think while very important is certainly no panacea and
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importantly recusal is a case-by-case basis. when we talk about the public's kfpd in courts and how personal solicitation impacts that that is a systematic problem and case-by-case solution won't work and this was another point in justice robert's decision it can weaken the public's confidence in the courts and if they think judges are too partial to sit on a case and have to step aside. >> i think recuse alal recusal is often a normative punch and shows a relationship but it is impractical. let's deal with appellate courts separately. it is impractical for appellate courts for a couple of reasons. one is that the effect of business contributions is to be more favorable to all businesses. the recusal cannot change that
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impact because it may not be the specific business that is in front of you but 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 appearance before you. recusal doesn't fix that. the principle of a common law system is judges decide a very small number of cases sphreulsly but effectively decide many more cases. they are highly leveraged institutions. you look at the u.s. supreme court decide fewer than 100 cases a year but the impact is much broader. you know the decision you make in a particular dispute is going to effect businesses, law firms, lawyers that face similar issues. so, rekaoulsal 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 in a trial court level the problem is it is impractical
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because we wouldn't have any judges to sit in certain cases. if you are a defense law firm you represent criminal defendants in a particular trial court you will donate to all of the judges that you think have a chance of being elected in order to ensure they are favorable to you. can they recuse themselves from if all of them recuse themselves who will hear the case? that would be in a court like mrs. williams was running for county court which is a court of limited jurisdiction in florida you are talking about repeat lawyers contributing you would rule out any judges so recuse sal sounds good in theory and matt has done a great job showing how it has other problems but for appellate and trial courts it is not realistic. >> i also don't think much of recusal as an effective means of addressing any problem that exists. i'm not sure i think tracy is assuming a recusal standard under which anyone who
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contributed with trigger recuse salway strikes me as a rather supreme measure. perhaps there can be alternatives. i guess a broad are point is i agree with andrew i think that judges don't recuse as often as they should. i think you could probably disagree with examples. but that may illustrate part of the problem. i think there is also a culture among all nine supreme court justices that they are not going to be second guessing each other's nonrecusal decisions, that this is something that each gets right so they may have greater faith in the effectiveness of recuse than the rest of us do. one last point tracy seemed more agnostic in the direction and causality discussion the effect of campaign contributions from business and most recently you seemed to be adopting a
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particular view of the direction of causality. >> that is because she is sitting near matt. >> i would say the study that i'm thinking of that looked at business decisions is the one that did the best job of demonstrating causality. but i think it is a fair statement any empirical study is gynecologied by the population of cases and i will be the first to say we can only draw interrences 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 braving necessarily unethically or knowingly if they are favoring particular interests. i think it is just human nature the reciprocity principle and that is the concern. >> you folks have been waiting patiently as we've adrenalined on and it is -- droned on. i have been reminded 17 times that you have to have a
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microphone in front of you when you ask the questions. i was actually apprehended briefly before there and told to remember. so, if you would raise your hand we'll get the microphone to you and you ask the question and we will do our best to answer them. the microphone is there and so is the question. >> mark sharman with a.p. i wondered with the exception of efrd if 95% of people are persuaded that contributions make a difference in judicial decisions and if the empirical evidence also suggests that then why do so many states elect judges and why is there not a wave of states going away from that? >> i would like to -- you want to take that, scott. >> historically there have been adjustments to these sorts of problems problems. states have had particular
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situations like in florida that have caused them to be more responsive to the issues and to change ways of limiting outside influence and special interest influence. but for the most part i think while the polling says people are considered about it, it is not something they get energized about. i think if you ask the average person they might not be aware judges are elected in their state and they typically are not getting anywhere near the attention that issues close to the top aren't getting. it doesn't mean the need is not there but perhaps we are forming things procedurally will more of a hindrance than some of the more high profile issues. and it is a difficult thing to connect to people. >> i can add historical context. the longer story there's an interesting brief filed by uphill sugar manman.
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it a nutshell and this goes to a point ed made and i endorse that there is no perfect system of picking judges. in the 1800's most states used a federal model and one of the weaknesses of the model is it can lead to-on-ism where executives are more likely to pick friend and close supporters than the best judges. and the age of machine politics in the 1800's saw a proliferation of party hack judges and the reaction feels to move to judicial elections as a way to try to take power away from those machines and to make the judiciary more independent from the other branches. >> progressive reform. >> right. and every reform spurs counter counterreform and elections were very much an attempt to promote
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a more independent impartial judiciary and they are largely an historical vestige of their time. >> tracy? >> i disagree largely with what people have to say. every selection method impacts judges's decisions. elections were as matt noted adopted 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 is interesting is the florida case since that is the case before us if they did change it for appellate judges they went to a form of the merit selection with retention plan but not with trial judges. not with the judges they think of as the judges in their lives and i think that is pretty interesting to try to understand if voters feel that this tension between accountability and
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impartialality is one they would like to resolve when the judges are closer to where they are. what is disappointing of course is that judicial races are individual voters know very little and least likely to vote in judicial races. so in terms of answering the question why do away retain judicial elections it is because of the ideal of accountability and calendar is that you don't really have that in the races generally. i certainly agree with ed that there is no perfect system and no perfect judges even if we had a perfect system. >> >> i have a comment and question.
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it is based on the fact i began my legal career as a state court prosecutor in miami, florida and i think it goes to what andrew said earlier my experience was i don't really feel it makes a huge difference whether the judge directly asks or there is a campaign committee. the process in miami which is the largest jurisdiction it florida it is fairly small and campaigns committees organize fund-raisers often at bars and all of us prosecutors who made $30,000 or $40,000 would come for the free beer and defense attorneys with come to contribute. i think it the criminal side of things where i was prosecuting this is my question for tracy you mentioned that you see particularly closer to elections judges become more law and order focused yet the prosecutors are not

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