Various states have different methods of selecting judges. Some 39 of them still elect them, including WV. Our court has been in the news a lot lately, and not in a good way. Then I spotted this in USNews:
...There are nearly 40 other state Supreme Court races ahead this year, some of which are already gaining attention—particularly in states where the outcome could tilt the political balance of the court. The Mississippi high court has four seats up for election; Washington has three; and in West Virginia, where half of the five-member Supreme Court has come under scrutiny over connections to a top businessman and campaign contributor, two seats are contested.
Though costly and contested judicial elections have long been common in states like Ohio and Illinois, the battleground has now spread to places more commonly known for more civil judicial politics. "Groups that had previously focused on trying to influence lawmaking," says Mike McCabe, executive director of Wisconsin Democracy Campaign, "now want to impact how laws are interpreted and enforced."
The change stems partly from the growth of tort reform in state electoral politics. Realizing that the courts could have the final say in tort reform laws, both business and plaintiffs' lawyers are now putting more money into supporting friendly judicial candidates. Their efforts were aided by a 2002 U.S. Supreme Court ruling that held that Minnesota's rule barring judicial candidates from discussing political issues violated their First Amendment rights. Judicial candidates were now free to take political stances on hot-button issues like abortion, and the result, some observers say, is more partisan judicial contests.
...Outside groups have added to these amounts, spending 2½ times more on television ads in the 2004 and 2006 cycles than in the previous two. And increasingly, this money is coming from the business community, which represented 44 percent of all campaign money—twice the percentage of donations from lawyers, according to the Brennan Center.
It's not only judicial elections that are coming under scrutiny this year. In a handful of states, merit-based selection panels are facing questions of political manipulation and attracting the interest of groups like the Federalist Society. Under the merit system, various panels, composed of governors' appointees and lawyers, usually appointed by the state bar, nominate candidates for appointment by the governor.
I've done a bit of reading -- from the WSJ to the Brennan Center and beyond. The bottom line is there is no easy answer. With elections, you get democracy in action -- and all the messiness and potential for jimmying the system with copious money and falsehoods that entails. With appointments, you get the potential for favoritism, cronyism, and outright partisan hijacking. Both can produce high quality judges for the public interest...or the best judges that money can buy (YouTube). But how can you know?
The other day, I met with a couple of my old law school professors at a local bookstore. One of them is running for the Supreme Court this year, and I wanted to pick his brain on the oddity of running for a political primary for a judicial position that is supposed to be apolitical once you reach the bench. That just seems so odd to me. And for those outside the legal profession who don't know any of the players well? It has to be even more odd -- making the line-up of endorsements and special interest support all the more important.
Bob Bastress was my Constitutional Law professor, and I worked for him my first summer on a project for the WVACLU. He's a great guy -- the sort of law school professor who takes time to explain a complex issue, and who also does serious representation for folks who can't afford big legal guns who don't do pro bono work.
Bob has worked on cases which have opened public education through textbook access and tried to prevent school consolidation from wrecking rural schools. He once challenged a hidden camera in a workplace locker room, ostensibly put there for "safety" considerations, but which happened to be focused on the lockers of the three guys trying to unionize the business. He has put in years of work on ballot access and anti-discrimination suits, union representation, and civil liberties cases for the WVCLU. And he's been a professor at the WVU College of Law since 1978.
Which is to say, he's not exactly rolling in the benjamins when it comes to campaign cash. He's been endorsed by the largest newspaper in WV, and he got the highest ratings from the state bar membership, and a host of union nods. But campaign cash talks loudly and, increasingly in races across the country, that campaign cash is coming from special interest proxys.
I asked Bob if he'd be willing to stop by this morning and chat a little about running for judicial office, with the understanding that he's limited in how he can answer certain questions on issues that might eventually come before the court. It isn't often that we have an opportunity to talk with someone who is facing this kind of race -- judicial elections are, sadly, not covered nearly often enough in terms of scrutiny and discussion -- and I thought everyone would enjoy this.
So, without further ado, I welcome Bob Bastress and open the floor to questions...
(Bob's campaign website, btw, accepts donations via PayPal, if you are so inclined.)
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Good Morning!
We’ve spent a lot of time talking about the importance of federal elections for the federal courts, I thought it was time we took a peek at the impact of state courts as well, since the bulk of public policy decisions percolate up through the state courts to the federal level. Hope everyone enjoys the discussion on this!
Oh, and welcome Bob — good to have you here this morning. I thought we could start with a quick question on how odd it is to “run” for a seat on the Supreme Court bench. You all have had a debate and a number of interview/forums wherein some views have been batted around. But most of it ends up being the sort of non-answers that we see from judicial nominees to the federal bench since no one wants to say directly how they would rule on particular cases.
How tough is that — especially for someone who has spent years advocating for clients and teaching specifics about legal precedent?
Welcome Sir,
Anyone who has been a mentor to Ms. Smith is certainly lucky indeed.
Do you see the outside money as tainting the process? If so how can we help?
Bravo, Christy!!
‘Local’ courts matter, very much indeed.
Congrats on your Prof being a candidate.
My Con-Law professsor went to work for Reagan … not a surprise.
Very interesting Christy, I had no idea all that had changed.
Even more interesting is that there are some positions here In Washington I had no idea about.
Jim — I know there has been an infusion of money in recent years from interests as divergent as the PAC for the national chamber of commerce group and the various trial lawyers association groups, centered around the arguments on tort reform. But you also see infusions of money from right to life groups as well as choice groups, anti-immigrant folks have made big donations in races out west and in the south…
Once the door was opened for these types of expenditures, the money has flooded in. And, as the USNews article hinted, in states where there are appointments rather than elections, there have been substantial allegations of attempts to game the process for political reasons aganst Federalist Society folks and others as well.
It’s a real problem when people are committed to results-oriented selection criteria as opposed to integrity-oriented selection. But how to solve it isn’t any one easy answer.
Thank you for sharing your time with us this morning, Professor.
Local courts make s many more decisions that have immediate impact on every day lives. If anyone has ever spent time in magistrate court or circuit court (the names ot the two lower level courts in WV — their labels in your area may vary), you’ll know what I mean — the day to day grind of criminal matters, juvenile cases and abuse and neglect alone is staggering. And when you add in civil suits and divorce/family/custody matters, you begin to see how many aspects of every day life can be touched by this.
Welcome Mr Bastress. Thank you for being here and you can be proud of your former student. She has worked very hard to teach us lay persons some of the nuances of the law.
Don’t know if you can answer this, but what is your perspective on the stylings of Assoc. Justice Scalia on the Constitution as a “dead document” and that pre-indictment/trial/conviction torture does not constitute “cruel and unusual punishment?” That is, how does this jibe with the presumption of innocence?
To me, as a non-lawyer, it appears that Justice Scalia would be quite comfortable back in the days when dunking was the preferred method of interrogation such that innocence was found by drowning the accused.
Thank you for being here, sir.
I’ve stewed about this for years in Ohio. The judges often seem very politically biased in their leanings, same with State Board of Education members, yet party affiliation is not listed on the ballots.
I can sometimes tell who I should vote for by looking at party mailings, which often post endorsements, but otherwise it’s pretty tough. Sometimes I’ve even marched into one of the local ultra-conservative churches to pick up a copy of their endorsements, and then voted for the opponents of those candidates. Sounds stupid, but it works.
I suspect many people have no clue, so leave the ballot blank.
THis is one of the reasons we partnered with Alliance for Justice this year to do the First Monday series that we’ve been doing. The court system has so much reach in terms of day to day implications — but most people really have no idea what that could mean for their lives unless they have worked in or out of the legal system. I really thought some education on these issues would be beneficial to so many of our readers — especially the activist types who will be working on various campaigns. You need to have an understanding of all of this, and how much of a difference all of the levels of work can make — from local elections upward.
This is why working on various campaigns and issues is so important.
Thank you for joining us Professor.
Barring any changes in the election rules, can you tell us why the special interest groups have stayed out of the state and local races until now, and what could be done to get them out of the process?
it’s chilling to realise how fragile our judicial system really is
I would have never believed the administration could damage our department of justice and twisted our law as they have, and they did it so easily too
and it seems what they’ve done will last at least a generation and probably longer
we can no longer trust judges to administer the law the way they see fit, instead they will administer that law the way their party wants.
I have lost faith in our system, in our judges, in our politicians
It is nice to see someone like bob batress becoming a part of this process and this is what we must do as the electorate
I am wondering how long it will be before we have a doj with integrity, how long before the judges and attorney generals of this administration are gone from public service and how easy it is to remove someone from office who we find making political rulings rather then rulings based on law
Being a judicial candidate is difficult because one cannot really run on a platform about the issues one wants to push or even address. Unlike the other two branches, judges (for the most part) have to let the issues come to them through the litigants and courts cannot anticipate what those issues are going to be. On the other hand, this year in West Virginia viable issues have formed about judicial integrity and the role that money plays in judicial elections. So, there have been opportunities to discuss the need for reform to reduce the impact of money from special interest groups and to try to clean up the judicial selection process.
In addition, the West Virginia judicial system constitutionally places a lot of administrative power in the Supreme Court, and there is much that the Court can do in addition to deciding cases. For example, the Court could create (as the State Bar has proposed and as has been done in most states) an Access to Justice Commission to enhance the delivery of legal services to poor and middle income families. I have also urged (before and during my run for the Court) appointment of a Commission to implement steps to address the gross overrepresentation of minorities as defendants in our criminal justice. Such proposals are legitimate subjects for campaign discussion.
Not on subject, but question for you legal eagles about the SCOTUS decision yesterday re: voter ID. Can the Congress enact legislation to make states that pass voter ID for voting be required to supply the IDs (finance and aid citizens in getting the proper documents for the IDs) ??
On both sides of the river hereabouts–ND and Minn–judges at the county and district levels, once they get into office for the very first time, seem to have a virtual lock on the seat for as long as they want it. The power of incumbency is daunting.
The 2004 election cycle was really where the sea change in special interest involvement in judicial elections occurred. Up until then, there hadn’t been as much on a nationwide basis — it had been sporadic races where there was a balance-tipping question but, for the most part, outside influence was considered “bad form” in judicial races. The Carnegie Endowment piece on judicial elections that I linked above does a great job of walking through the history from the 2004 elections forward to 2007. And how different the landscape looks now from back then.
But it isn’t absolute — I know of a long-time judge locally who had a lock on his seat for years. But he wielded his power in a way that was discriminatory and vengeful at times, and was voted out of office after a long time on the bench because enough opposition to his tactics had arisen, and a local lawyer was willing to take him on and won.
It’s do-able, but it generally has to be a case of egregious misconduct where integrity and ethics issues are raised. Just like incumbents in other elected positions, eh?
I’m curious — how are judges selected in your state? And how do you think it’s working for you? Especially for the legal beagles in the audience, I’m really curious about states where there are judicial appointments and/or some other mechanism for judicial selection — how do you feel that works for you? Or do you have some other means of de-politicizing an election process in your state?
I’m familiar with what we do in WV. But I’m very curious how things are working elsewhere — or how they aren’t working well?
The outside money is tainting the process. West Virginia, for example, provided the plot for John Grisham’s new book, “The Appeal.” In 2004, Massey Coal Company CEO Don Blankenship spent $3.5 million dollars in independent expenditures to defeat an incumbent Justice and to elect a Republican challenger. At the time, Massey was appealing a $50 million verdict that a jury had awarded to another coal company against Massey. The justice whom Blankenship helped elect subsequently voted (with the court majority in a 3-2 decision) to overturn the verdict. This year, the Court once again appears to be a ball in political play.
To find out how to help with our campaign, visit bastressforjustice.com.
the administration is gonna crow and walk about like a proud daddy, from think progress right now
Christy -
Although it may appear at first blush that I am veering off topic, I think that this story is of sufficient importance from the standpoint of constitutional law to mention at this juncture: http://rawstory.com/news/2008/....._0429.html
I have a question for the attorneys who are reading my comment: what do you think of the case law cited in the accompanying letter from Kathryn Wheelbarger?
Professor I truly appreciate how you think and your obvious concern for real justice for all, regardless of wealth, access to ‘dream teams’ and political connection.
The best judges, remain teachers, as well (which you shall undoubtedly exemplify). Thank you; you do immense honor to your profeesion, which sometimes, quite deservedly, finds itself in low repute.
Professor, in Ohio the education funding system is terribly flawed. It has been declared unconstitutional twice by the Ohio Supreme Court. Recently, there was another push to try to get something done, and the Supreme Court declared that they simply were not going to deal with the matter any more.
That’s a solution?! These people seem locked into their positions by the political power structure of the state. No one of substance challenges them in elections or, if they do, the challengers’ campaigns are pitifully weak, and doomed to fail.
I know I am just venting frustration without asking a substantive question, but what are we as citizens supposed to do in a situation like this? We feel beaten before we even start.
I am so very happy for West Virginians that someone like you is running. I hope you win! Christy’s endorsement means a lot to us here.
Although, to be perfectly frank, the incumbent justice was not (at least in my opinion) exactly a great example of judicial integrity and hard work, either. That election cycle was bitter and odd in a lot of ways, and provided perfect fodder for Grisham’s book. The odd thing was that the justice who, ultimately, was elected with Don Blankenship’s considerable 527 contribution assistance, then subsequently failed to recuse himself from considering that case even when asked to do so. (Remind anyone of Scalia’s refusal to recuse himself from the Cheney energy task force case after their hunting trip?)
Lawyers and judges have got to put integrity for themselves and the process first if we are to restore any confidence in the system. The last few years in WV — which mirror the last few years in the nation’s legal system as a whole — have been a perfect storm of judicial questions that need better answers than we have been getting.
I, and the rest of our faculty, are indeed proud of Christy’s accomplishments. We do not regularly graduate students who create a national forum.
As for Justice Scalia’s insistence that constitutional provisions be tied to their specific meaning at the time of drafting, I can only say that he is out of step with most jurists and constitutional scholars. One need not go any further than the interpretations that we have come to accept regarding the right of privacy (protected through the Due Process Clause) and the invalidation (through the Equal Protection Clause) of most all forms of sex discrimination. It is abundantly clear that the 1868 framers and ratifiers (all of them male) of the Fourteenth Amendment had no clue that their handiwork would eventually lead to equal rights for women.
As for torture, I think its use is cruel and unusual whether it comes before or after trial.
Adie — we have a lot of the same issues in WV, in terms of rural and poor districts with little to no resources versus more “urban” (and I put that in quotes because anyone who has been to WV knows that our urban isn’t the same as NYC or LA urban) areas with a better tax base and resources to draw on, etc. There is some redistribution of resources to try and lift up more troubled areas — and some other pockets of income from the state which are distributed as well. But there are no easy answers at a time when every state budget is decidedly strained from the federal scarcity of budget money due to the extra expenditures we keep racking up in Iraq (just as one example).
Not to intrude upon the discussion but Bush is holding a news conference. I’m listening on my local public station but it is probably on CSPAN 3. It is so far the same ole same ole: in short, it’s not his fault and then he gives laundry lists. Garbage.
Yeah, that whole Marbury v. Madison thing was clearly a blip. *g*
Does WV have term limits for the State Supreme Court? Here in Iowa the Justices are appointed by the Governor. They go through an extensive bi-partisan vetting committee process. I tend to believe having to worry about upcoming elections while trying to maintain judicial independence would be almost impossible.
I bet you can guess. It’s congress’s fault, open up ANWAR
Tell me you didn’t have to take Con Law from Meese…
Someone wrote a very good article last year on the differences between social and criminal laws. Does any one have a link to it? Thanks.
What a nice surprise, Christy. Thanks for your time, Judge Bastress. Here in California our local judges are elected, but I don’t remember ever voting for (or more likely leaving blank) a CA Supreme Court Justice. I wonder why this wouldn’t be similar to the Federal system, whereby the governor sends his choice to the state legislature, with a 2/3 (?) approval needed for the Justice to be seated.
Christy and Professor Bastress:
I am a Wisconsin resident and our state Supreme court elections have been taken over by special interest lobbying groups–they run multi-million dollar ad campaigns in support of their right wing candidates. The last two judges we elected (pains me to say that) were a product of this corrupted system. These were not the most qualified candidates from a legal or judicial perspective, particularly the latest candidate (no appellate experience at all, and he unseated a sitting justice). Just smear ads by lobbying groups that ran endlessly on TV and radio. Tons of money poured in from out of state.
I’m completely frustrated! Sorry, no real intelligent question here, just a report from another state. Some groups are calling for a change in the way we elect these judges–more “experience” based. But, it’s early.
In Texas, the national test bed for bad ideas, we elect them and Bob Perry and other wealthy Republicans pour mega-money into into the effort. We’ve had such luminaries as Cornyn, Gonzales, and Harriet Miers grace the Texas State Supreme Court.
I think in the past decade the special interests have figured out that much of the law is implemented through the state courts and that investment in state judicial elections can reap benefits. In my view, the way to combat those investments and to promote effective judicial elections is through public financing them. I also think that additional regulation (through affirmative education as well as limitations on spending) might be appropriate. Some measures that would not be constitutional as applied to the political branches could be valid when applied to judicial elections.
I know when I worked in the prosecutor’s office, my boss — the elected prosecutor — was constantly having to deal with political considerations over and above the regular case considerations. You’d look at the facts, the law, the evidence…and then have to weigh how a particular outcome might or might impact the next election cycle. I tended to refuse to consider political implications in my charging and trial decisions, but that didn’t mean they weren’t there anyway.
It is a very, very difficult thing to have to deal with as you try to do your job well and with integrity. The best put politics aside for the most part — the worst don’t, and are often the folks who end up not winning re-election as a result, I think.
No, Dr. Ruth Silva.
Meese (shudder) has ALWAYS creeped me out.
I just wanted a bit of pre-law and a solid grounding in history, so that my study of Psychology would be more ’rounded’, although I did briefly consider the Law, I concluded that I hadn’t the stomach for it …
But I deeply appreciate those who do and have integrity as well …
The Texas system has been notorious for years, hasn’t it? I remember when I was reading John Anderson’s Follow the Money for the book salon we did with him, the intertwined nature of the political and legal systems — with Baker Botts at the head of that line — was both fascinating and repulsive on so many levels.
In Texas they are elected
allowing the Gov to fill vacancies
oh yeah, that’s working jes fine for us :D
There was some background on the recent Wisconsin races in some of what I was reading on this subject. There is a documentary clip that I linked above dealing with the same phenomenon in Illinois as well. I cannot think that such similar infusions of money from the same groups over the same issues isn’t a coordinated effort nationwide. I mean, honestly, what a coincidence…
We allow for a temporary vacancy fill by our governor as well, but that’s generally done in consultation with the state bar and faculty at the law school and such. And has resulted in some great justices for short terms until thenext election cycle through the years here.
But we are a very small bar — in a small state — and until the last few years I wondered if that would mean we’d escpae the outside influence mischief. Alas, it seems that was not to be, given how the last few years have gone in terms of the roiling of the judicial waters by donations and accusations of scheming and such. *g*
I am a little familiar with the situation in Ohio since I have worked with several groups dealing with educational finance reform. Ohio’s court had indeed twice found the state’s educational system unconstitutional (citing some pretty horrid school conditions) only to throw up its hands in the end and quit. What happened between the earlier decisions and the latest was a big push (by business) to elect justices who would buy into the “tort reform” agenda. (Such issues are generally controlled by the Legislature, but the previous Ohio Court had been resistent to changes.) Business-oriented judges, as a general proposition, are less willing to impose education finance reforms.
Ah yes, our friend John Fund opined with great happiness at the outcome on the editorial pages of the WSJ. It had major inaccuracies that had to be corrected by letter writers, but hey, who’s counting?
I’m torn on this subject. These jobs require a very specialized skill set that few people possess. I’d like to find a way to minimize the political interference we’ve seen (and it sounds like Texas experiences) to make sure truly qualified candidates can serve. But, I’m hesistant to say that Governors can appoint them.
Here in New Mexico we have a hybrid system. Judges for the State’s courts (District Court, Court of Appeals and Supreme Court) are appointed by the Governor. However, in the next general election the appointed judge must stand for election in a partisan election. The winner of the partisan election then stands for a retention election every four years after. The Governor’s appointments must come from a list of nominee/applicants vetted by a nominating commission. The Dean of the UNM Law School is a voting member of the nominating commission.
Our local (magistrate court) judges are elected, and are not required to be members of the New Mexico Bar. Albuquerque has an additional court layer (Metropolitan Court). I don’t know how the Metro Court judges are handled.
This system creates some interesting dynamics. The opposing party tries to influence the Governor’s appointments by threatening to clobber the nominee in the upcoming general. Sometimes it works, and sometimes it doesn’t. The Republicans really hated one of the nominees for the last vacancy hereabouts, and said they’d clobber her in the general. It was close, but they didn’t clobber her.
BC
We do not have term limits in WV. Our Constitution attempts to ensure judicial independence by providing for 12-year terms. That has not totally succeed in accomplishing the goal.
That’s a tough one, because there are state’s rights considerations there that might make forcing a national requirement difficult. But, at the same time, there are certainly access issues on civil rights and handicapped/elderly accessibility to acquiring a license/photo ID questions that would need to be addressed that could be forced at the federal level were the DOJ functioning as it normally does on these issues.
One of the big problems is that, due to budget cuts, locations have been consolidated into fewer places to get the IDs. And when you are a poor person with no car and little to no transportation — the very sort of person who wouldn’t have a driver’s license to begin with — having to travel three counties over in a rural area with no public bus system to get an ID to vote isn’t the world’s easiest thing to accomplish.
The push on this will likely start in state legislatures — as it did in GA — to make the ID process more accessible. That would be my guess, anyway…
Thank you Christy. I realize. It’s just so very sad. The first of our “kids” started kindergarten here 32 years ago. Through good times and bad, the problems of school funding have remained essentially untouched, but not for want of people to fight for them, and so the struggle goes on even as it becomes more hopeless, sigh. Several of my good friends are teachers and, much as they loved their calling, they took early retirement out of frustration capped by the idiocy of the “no child left…” fiasco.
Yes, I’m familiar with some of your cities. My parents lived in Charleston many years ago. Our musician son and his gal beat a regular path down to Wheeling frequently to play in the symphony there and in schools of the surrounding area, subsidized by some incredibly generous and wise donors who make that possible.
A beautiful state full of fine people, and with one of the finest U.S. Senators ever to serve. But the mountain-topping breaks my heart.
I wondered about the hybrid systems and how they work. It sounds like even the attempts to insulate politics out of the system, somehow the political types find a way to re-insert themselves. Not surprising, but amazing how tenacious they can be, isn’t it?
I think California uses a form of the Missouri Plan, by which justices are appointed and then periodically have to go before the voters for an “approve/disapprove” vote. You might recall that a sitting Chief Justice (Rose Bird, I believe, was her name) was disapproved by the voters, mainly over her votes in death penalty cases.
Stephen, at first glance it looks like a lot more of the ginned up “Fourth Branch” hooey that got them laughed at the last time. But I’d have to read the cases in full to say for certain…I’ll take a peek when i get a chance.
In addition, it seems a dreadfully tangled mess has been intermixed with the previous problems by the rapid growth of private, for-profit schools which are linked with very powerful political forces (e.g., White Hat Management.). Some of the allied skullduggery is just now hitting the proverbial fan. I expect some more shoes to drop before we understand it all.
Mainly because she was a very bad, incompetent judge. I am still proud of my vote to throw her out.
Also, it is worth pointing out that judges can also face disciplinary action from the state bar for misconduct while in office — just as attorneys can face the same while acting in their professional capacity. And judges have been sanctioned in a lot of states — and on the federal bench, including being impeached — for violating their oath of office to the extent that such a remedy was warranted.
It’s not something that is common — nor should it be — but there are mechanisms in place to try and prevent outright fraud or other misbehavior by judges. And I thought everyone should be aware of that.
Here in Washington state, a major special interest group — the building and development industry — poured large sums of money into two of the three races for the state Supreme Court in 2006. Fortunately, voter awareness of this ran relatively high, a backlash resulted, and both candidates lost.
Which tells me that getting the information out and pushing back can be very helpful. Most voters actually don’t like seeing their judicial system being openly rigged.
I think that is an excellent point, David — and one that is worth replicating in other states where there is an attempt to buy an election for a particular agenda candidate. This is where grassroots efforts: letters to the editor making that point, call-ins to local talk radio, showing up at public forums to ask questions publicly of the candidate, voter education efforts like handing out information and/or going door-to-door and doing canvassing on the issue — can make a huge difference.
How was the pushback done effectively in WA?
Where judges are elected most voters have no idea who they are or what they stand for. Because judges are supposed to be apolitcal as mentioned above this only exacerbates the problem of knowing what their positions are. There needs to be good sources of information on candidates and these sources need to be made widely known and available.
wha ??? surely you are thinking of someone else
wiki
Most state bar associations do some sort of rating of judicial candidates that scores them on integrity and issue areas. I know ours dos and publishes their results in the state bar journal. A number of the state newspapers picked up on those rankings and did an article or two on the results — but, unfortunately, I think mainly the legal folks pay attention to this information — and most of us already knew a lot of it anyway. It’s almost self-reinforcing information for legal folks. But I’m not certain how to get it to ripple outward beyond the legal community, frankly. Any ideas, gang?
Seconded!!
Choosing judges,if elected, should NOT be a crap-shoot. One has to wonder who benefits from the current system.
Anyone? Or no one?
I don’t know enough about that vote to weigh in on it, beyond what I previously stated.
Good Morning Professor Bastress and Welcome to Firedoglake !
anyone endorsed by Christy would surely serve justice and the good people of West Virginia
am thinking your union endorsements in such a high profile year will help - guessing the usual extraction suspects are funding your opponents
have you solicited an endorsement from Grisham ?
Ideas? Heh. Please see my #11.
Besides knowing a couple of lawyers I respect, I got nuttin’ ;-(
Regarding Grisham — I am not allowed by our judicial disciplinary rules to solicit anyone’s public support. The rule is probably unconstitutional, but I have enough to do without instituting a law suit. We have a crazy system here that puts candidates in a partisan political race and then ties their hands from competing, thus promoting the causes of the wealthy and the incumbent.
surely you remember the Robertson/Falwell-inspired(?)”voter information guides.”
I think the New Mexico system mostly works. Politics is an undesirable part of the system, but it is part of the system. I think the retention elections are a good idea, because it provides a mechanism short of impeachment for removing egregiously bad judges from the bench.
Of course, my idea of an egregiously bad judge (A. Scalia/C. Thomas) isn’t necessarily a GOoPer’s idea of an egregiously bad judge.
BC
I want to thank Bob for coming to chat with all of us today — it’s awfully close to finals time, I think, so it’s great of him to take a chunk out of his morning to spend with us on this subject. I find the whole process of judicial selection fascinating, and I really appreciate his willingness to share some of his personal experience with it today.
Couldn’t the gov’t in charge of voting folks who are responsible for sending out Voter Information Pamphlets include those? You know, like with the propositions?
Possibly some small step we could work on?
Christy and Professor Bastress -
just clicking on one of Christy’s links shows a 61% in special interest contributions in just 10 years - yikes !
IANAL, on the surface Public Finance/Term Limits sounds like good start
It is such a bizarre amalgam in WV — mostly of rules that haven’t been updated since the “gentlemanly” days of yore, I think. I know our judicial campaign speech regs have seemingly not been updated since the White decision in 2002 opened the floodgates for political speech in judicial races.
It’s a fine line between arguing free speech and constitutionality and trying not to piss off the legal powers that be in an election year, I would guess. *g* And I don’t envy you the walking of it…
Same type of schtick has been attempted in OH by those who’d dearly love to pack the State Board of Education with creationists/intelligent(?) designers.
They vote in a block and the rest of us are allowed, indeed expected, to remain drowsy, bored & clueless.
I don’t have the answer, but it’s time we woke up.
That happens a lot in local elections as well. I keep meaning to get to a post on paying attention to local races because that’s really where all the action is that impacts all of our day to day lives. So much to do, and so little time to get to it all… *g*
I’m probably operating with an overabundance of mistrust, but the idea term limits always raises a red flag in my mind: what happens then? who REALLY gets to run the show? often the lobbyists quietly take over.
Look at K Street influence in D.C. right now….
I know a lot of the unions, for example, send out voter information pamphlets to their membership indicating who preferred candidates are. At least, they did the last couple of election cycles anyway.
And a lot of local interest groups around the country do the same thing as well — environmental groups, for example.
Thank you, again, Professor Bastress for visiting us as well as for your philosophy and commitment to genuine justice.
As they say, ‘there is just as much justice as you are prepared to stand for, and, if necessary, to fight for …’
Thanks also to Christy as well as big points for choosing so wise a professor in your ’salad’ days, (lots of salad and rice in my day plus those ramen noodles …)
LOL — Well, I didn’t exactly get to choose — you get assigned your profs in your first year of law school. I just got lucky… (Lots of ramen noodles in my grad school days as well, btw.)
Bless yer heart, hon. One day at a time. Take time out to enjoy that adorable Peanut and undoubtedly equally adorable Mr. Redd, and take care of yourself. That’s an order!
We can wait. You’re a gift. You saved what’s left of my mind, for which I am deeply grateful. So is Mr. Adie. ;->
Amen, but then, you is lucky and with more luck it’ll rub off on the rest of us and our nation …
Blogs got the ball rolling actually — David Goldstein’s HorsesAss played a big role in getting the word out. Then the media picked it up — though they had in fact been reporting it all along. And then some Democratic 527s ran some ads pointing out the BIAW connection. And finally, the incumbents’ own campaigns ran ads pointing it out.
The volume of these ads and efforts was quite small, incidentally, compared to what we saw from the pro-BIAW contingent, who flooded the airwaves with negative ads about the incumbents.
And we saw something similar last year when we had an initiative on the ballot to require the insurance industry to pay up according to their contracts. The industry spent about $11 million on ads and we were inundated with awful smarmy ads. Progressive groups finally organized and ran some counter-ads that, while much lower volume-wise, were far more effective. The initiative won handily.
Since there is always the question of What Can We Do here, which is a wonderful thing, as opposed to just complaining, maybe the campaign staff or other supporters for candidates for Supreme Court Judges or Blue America Candidates can get the pertinent information to the groups you listed, including evaluations and lists of accomplishments?
Sorry for the long sentence.
You asked for suggestions?
gotta go dogs -
Have a FDL day !
mad progressive love to all
Thank you Professor. I wish I lived in WV so I could vote for you. Actually, I have friends there. Hm-m-m. Endorsement? Consider it done. *g*
So, do folks find the legal discussions helpful in terms of evaluating political ins and outs in their own areas? Or in learning more about the legal system in general? It’s always tough for me to tell, because I find them fascinating, but I’m nerdy that way. *g* Am trying to gauge whether you all find these useful or tedious — or something in between?
Yes, thanks.
seems to me that with elected judges- people stay in position until they do something controversial-and then they get kicked out- so the bahavior that gets rewarded is “no waves”.
if that’s nerdy, i like nerdy. Thanks!
I too find them fascinating but law and justice are my passion*g*
Thanks much for these enlightened discussions.
I find them fascinating and intriguing.
For me and many others here (or so I’ve read) were directed here specifically for your legal experience and the way you explain in layman’s terms.
Hope that helps.
Oh yes! I love your posts about the rule of law, as well as LHP’s and EW’s. I’m truly fascinated with this fourth branch nonsense, and love to follow the congressional hearings. (Especially with your translations from legalese to English.)
The “no waves” behavior is also what got Roberts and Alito on the SCOTUS. That and exceptional academic and professional resumes with no odd sticking out points. It’s the wave of the future, I’m afraid…
Well I can’t speak for everyone or even anyone else, but ‘education’, for that is what you provide us, is a lifelong endeavor and salient information with ‘local’ (if not ‘personal’) applicability is just about as valuable a thing as one can get, short of transendental enlightment or winning the lottery.
Kind of figured you knew that, Christy.
Rest assured, it is appreciated, muchly …
I love doing the legalese translations when I have the time to really dig into an opinion or an order. But I always wonder if it’s just my law wonk-ness, or if folks are getting something out of it. That’s helpful — thanks!
In other words…enlightenment, one easily understood word at a time.
Interesting how the Older we get, sometimes we’re willing to learn by Baby Steps.
I think one thing we ought to take away from this and mull seriously is how to research and measure quality of judicial candidates, and then get that information out to the public before elections.
As I believe the prof. said, it is difficult/nearly impossible to campaign on specific issues in this particular arena (judicial), since judges are not supposed to show bias in advance of dealing with actual cases.
Correct me if I’m wrong, Christy, but that’s my impression.
Sounds right—nothing in the record that can be pointed to as radical or controversial- even if it’s the right decision
That, and envy of that red hair, are why we are here. *g*
News sites all full of “Wright Wing” stories—fascist commentators think they’ve died and gone to heaven.
Hello, dear.
So, do you have the Clip Board for cutting and pasting What We Can Do?
If so, please add this.
Then when folks are haranguing about “What are ye gonna do?” you can whip the list out.
Or, when we’re just bored beyond tears, we can check the list. I’m kidding about that one. I don’t think anyone here is bored.
(& thanks again for yesterdays chat - no meeting until next week, btw)
Assuming that a non-Republic becomes President, it is hard to imagine the Republics would acquiesce on nominees like the modern Democrats have, even with colorless nominees.
oogh… another bright shiny thing…
Yep, I think that’s true. It used to be that the state party apparatus did quite a bit to sort out the lesser candidates before they even made a run for judicial office — there was a sort of state bar and state party nod that had to be gained before you could run, that separated the chaff out of the mix, so to speak. But that had such a whiff of “smoke filled rooms” to it - and it often did — that it’s fallen by the wayside.
Which is good in a sense in that it opens the process to folks who may not be so politically connected and beholden, but it also opened things to more special interest jimmying on the money end of things. It’s a tough thing to tinker with — and it’s tough for non-legal folks to grok when they don’t know the people running for judicial office personally. So much of your legal persona is in the day to day interaction with other lawyers, courthouse personnel, etc. — and you see that when you practice around someone, get to know their reputation for fairness and honesty, etc.
I just don’t know how to translate that outward — it can be really tough when you are running for a political office to not really be able to “run” for it in the traditional way.
This is a site that I have found useful in understanding the sometime arcane portions of the law.
http://lsolum.typepad.com/legaltheory/
I lived in California at that time, and as I recall, it was a rather transparent, yet successful, campaign by the Insurance Industry to remove her, using this unrelated hot-button issue.
I’ll catch up with comments shortly, but am stopping everything else that I’m (supposed to be) doing to comment.
I live in Washington State, and the last elections for Supreme Court here were ugly. Out of state, plus huge housing developer money — related to a very right-wing ‘property rights’ front that leans toward the Posse Comitatis end of the spectrum — undercut moderate, old school Republicans.
It’s my view that the Rovian philosophy that first occurred in Texas — gain control of the judiciary, and you’ll control **everything else** — has insidiously polluted almost all of US government. Indeed, those same property rights ideologues were a driving force on the phone with Rove, pushing to fire USAG John McKay because he wasn’t ‘wingnut enough’ for them. (And a brother of McKay’s had been a co-chair of the Washington for Bush presidential campaign, so that may give you some sense of how utterly unreasonable these special interests have been.)
CHS, this is a huge, huge problem.
Thanks so much for raising it!!
It’s toxic.
OT PSA - Free Cone Day at Ben & Jerry’s today. :)
Hey! I’m the one with little bits of notes to myself fluttering around all over the house - from last year, and so on, and so on…
Of course I have a clipboard. How else would I find my sox in the morning?! Except, 1st I have to find the clipboard…. *g*
Next week: measured, reasonable, FIRM. eh?
If they have a gifted program and he might qualify, and could stand the addition to what’s expected of him… just a thot…
The gifted&talented program at our school had a wonderful teacher who really understood these kids… She was our lifeline…
surrogates like us?
I really thought some education on these issues would be beneficial to so many of our readers
I might point out that in many cases, for businesses legal fees are a tax-write off. So are PACs. Which further skews things in favor of special interests.
Legal cases can be extremely expensive — how many neighborhood groups or citizens have $150,000 stashed away to fight in courts against the location of potentially toxic industries near their homes? Not many.
Meanwhile, the businesses can write off their legal fees.
And their PAC contributions are tax deductible.
This is a systemic problem that too few citizens understand until it is ‘too late’ for them to band together and form a 501(c)3 non-profit or raise legal fees and hire a good lawyer.
My experience with law school was that it was filled, for the most part, with good speed test takers (LSAT) and overachievers who did not know what else to do with their magna cum laude or higher degrees from Ivy League schools. Law schools are producing technocrats like Justice Roberts. I would like to see him on his feet representing a plaintiff in some crappy state court somewhere with a intellectually medicore judge, clients who are infighting, a jury which could care less and three large law firms on the other side representing the defendants. The best lawyers are those who can win cases before judges who are biased or could care less. Roberts and many like him may take tests well and manage their careers well but their empathy and lawyerly skill levels are quite low. Unlike Hugo Black, Earl Warren, etc.
To me it is not whether judges are elected or appointed, the first issue is salary and here in New York we need to triple the salaries of the state court and federal court judges for starters. The salaries for fed judges and state court judges are lower than some court reporters and first year associates at Cravath Swaine & Moore. And that is sad.
Okay, little notes all over my desk, next to the window, wind comes up, notes all over the floor, and, then the dog comes by and you Know what happens.
First find the clipboard, that’s funny. Would be a great title for a book.
He’s in the gifted program.
I’m so glad that you had a teacher who was a lifeline.
I’m still waiting. But, who knows, could happen.
Prayers, crossed-fingers, threats, holding breath ’til blue - whatever it takes. Burnt offerings, perhaps.
And I’d use Washington State as a Cautionary Tale.
But people need to realize it’s not only the courts — how is it that these same groups have become so powerful that they can even control USAG appontments?!!
I feel like this post kind of ‘digs beneath the roots’ and we are starting to follow the hideous, diseased roots of a very toxic plant that’s running rampant and quite destructive of justice (and of ‘fairness’ so necessary for social stability).
Will someone please come upstairs and help cleanup in Aisle 5? Some fool has dumped pins all over the floor amongst the balloons.
calm, fauxreasonable if & as necessary, allowing for trial periods and adjustments and firm.
That magical teacher we had: 15+ kids at a time meant 15 styles of learning. She believed that to her core, bless her heart, and it showed in all her interactions with the students.
Christy,
Great topic and sorry I’m late to the thread. This type of discussion is very valuable. I really treasure your insights, those of Mr. Bastress and the other posters. From a practical perspective, one of my best friends from college, now a law professor, is running for the NC Supreme Court.
On the plus side for her, these are supposedly nonpartisan races and there’s public financing. On the other, the incumbent, a decent guy, is being held up by his Repub brethren as the last domino standing against complete Dem dominance of state government.
She’s an expert on family law and professional ethics — would be a great addition to the court. Will be working my buns off for her and may solicit some ideas here after the distraction of the NC primary passes.
Please don’t ever think you’re being too much of a legal wonk for us. I’ve learned so much here. (Also helps me talk to my daughter, the law student. *g*).
I totally agree with Dave that this is what occurred.
I’d simply point out that the time, energy, and money required to ‘fight back’ is a huge lost opportunity on other issues.
And it is also very worrying that for 20+ years now the ’so-called ‘Moral’ Majority’ has been spouting off AS IF their point of view is the only ‘moral’ one; that seems to have made some of the wingnuts feel entitled — and enabled — in the whole process of politicizing justice.
Ironically, at least from my particular small perch, this has driven some Republicans out of the GOP from sheer revulsion at the jackboot tactics being employed by claiming the GOP mantle. It’s led extremists to claim the GOP, and left the moderates and old-timers (who are Main Street, fiscal conservatives) politically homeless.
A case of unintended consequences, but it is still toxic and still playing out.
I think citizens understand that they can’t afford their own attorneys.
They badly need to understand the way that tax laws hand over so much control of the legal system to corporations that — as legal ‘individuals’ — operate with very little responsibility.
A legal corporation is not designed to be a socially progressive entity; it is designed to maximize shareholder value (unless the managers steal it all). This is a fundamental disconnect.
Justice has been weakened by tax laws that basically enable and encourage the financial subversion of ‘justice’… or at least, that’s where we’re headed. IMHO, it is not sustainable, and people need to recognize that this contradiction isn’t working in an era of global economics and climate change.
Some things shouldn’t be for sale.
How do we make sure that ‘justice’ isn’t put on the auction block b/c of campaign funding structures?
I know this is off the TOPIC here but our veterans need our support :
Very well said, reader.
Christy,
Thanks for again another important “think piece” on our legal system!
Count me among those who appreciate your work on this! Multiple “amens” to Loo Hoo’s post @91, too!
Bob in HI