Judging
the Judges:
Should We Elect or Appoint Nevada Judges?
Justice & Democracy Forum Series
UNLV Center for Democratic Culture
William S. Boyd School of Law
Tuesday, December 10, 2002*
Evaluating Judicial Talent:
Surveying,
Ranking, and Promoting Judges
Session 1. 10:00 - 12:30 a.m.
Introduction
DMITRI SHALIN:
Welcome to the Justice & Democracy Forum Series, the conference
on "Judging the Judges: Should We Elect or Appoint Nevada Judges?" My name is Dmitri Shalin. I am director of the UNLV Center for Democratic
Culture which is sponsoring this public forum, along with the William
S. Boyd School of Law. Carol Harter, President of the University
of Nevada Las Vegas could not join us today. She asked me to share
with you this word of welcome:
I am pleased
to welcome you to the University of Nevada, Las Vegas, and the
William Boyd School of Law for the Judging Judges Conference.
We are delighted to host the inaugural conference here. I applaud
the efforts of the UNLV Center for Democratic Culture and the
Conference specifically, to address the important nonpartisan
issues of accountability, evaluation, and election of our judicial
officials. UNLV and the Center for Democratic Culture are dedicated
to promoting civic education and discussion through not only research
and scholarly exchange, but through community based programs like
this conference. On behalf of the entire UNLV community, we hope
you enjoy the Judging the Judges Conference, and your time on
our campus.
Now I would
like to recognize James Frey, Dean of the College of Liberal Arts.
JAMES FREY:
Thank you, Dmitri and welcome to all of you as participants in this
inaugural event. You're actually also participating in one of the
first events that's being sponsored by the newest one of the newest
-- centers on campus, the Center for Democratic Culture. Approved
by the regents here in August, and under the leadership of Dmitri,
the center is off and running with this conference and has several
coming programs planned. It's only fitting that the college of Liberal
Arts and the Center for Democratic Culture would bring up issues
of communication, intellectual discussions, and perhaps stir up
some controversy. Certainly we're all interested in civic education
and civic responsibility, the goals consistent with the agenda of
the College of Liberal Arts, where the Center is housed, as well
as the goals of the University. So let me welcome you again. I hope
this is the first of many programs that you will be attending and
participating in. I know you'll enjoy it. We have an outstanding
group of participants and panelists, and it will be -- it will be
a wonderful opportunity for an exchange and discussion. So once
again, welcome to UNLV, to the Boyd School of Law, and to the Conference.
Thank you.
DMITRI SHALIN:
I am a ready to turn the floor over to Jeffrey Stempel, who moderates
our first panel. But before I do so, let me briefly touch upon the
idea behind the Justice & Democracy forum series and the mission
of the Center for Democratic Culture. The forum and the center are
inspired by the notion that the process of democracy is as important
as its outcome. As James Madison and John Dewey pointed out, when
the process is unseemly, it matters little who wins. The results
are likely to be flawed, the scars will be slow to heal. When the
process is fair, it does not matter much who loses, because the
democratic process itself will have a heeling effect. The Justice
& Democracy Forum is a modest attempt to aid this heeling process,
to keep the dialogue going, to make sure we agree to disagree. The
forum offers a nonpartisan setting for exchanging partisan views.
It gives a fair hearing to all parties involved and expands the
room for the honest difference of opinion. If you disagree with
me, it does not mean that something is terribly wrong with you,
and if I am not swayed by your argument, it is not necessarily because
I am a moral midget or an intellectual nincompoop.
Our inaugural
forum is dedicated to the controversy surrounding judicial elections
and judicial evaluations. The first panel will focus in particular
on the survey of Nevada judges, although some presentations also
address the recent campaign for judicial offices. The second panel
deals primarily with judicial elections. Please watch for our upcoming
forums. The next one is on a contentious issue of tort reform, and
it is set for April 25, 2003. You might want to mark your calendar.
The one after that is on the "Demeanor of Democracy: Civility
in Public Discourse."
With this,
I turn the floor over to Professor Jeffrey Stempel, a distinguished
member of the UNLV community, who will introduce an illustrious
set of speakers at our first panel.
JEFFREY STEMPEL:
Thanks, Dmitri. Let me briefly introduce our panelists before beginning
with our first formal speaker. First, we have the Honorable Philip
Pro, judge of the United States District Court for the District
of Nevada. Judge Pro is a graduate of Golden Gate University Law
School. He became a U.S. Magistrate Judge at a very young age and
cut his teeth on one of the more complex cases of the modern era
in Las Vegas, the MGM Fire case. His work there was so impressive
that he came to the attention of the important decision makers that
select federal judges and has now been a District Judge since 1987,
more than 15 years. He's been a wonderful friend of the law school
and the CDC. Judge Philip Pro is speaking on judicial accountability
and independence from his perspective.
Judicial
Accountability and Independence: A Federal Judge's Perspective
Philip S. Pro
PHILIP PRO: One of the
advantages of going first is you don't have to respond to what everybody
else has to say. One of the disadvantages is you don't have an opportunity
to hear what others have to say and to provide any kind of commentary
or questions. But I think given my role here today it's really appropriate,
and of all the people involved in today's presentations, I'm probably
the person least qualified to address many of the issues that are
going to be considered by the panelists and you all today.
The subject
of my presentation is Judicial Accountability and Independence:
a Federal Judge's Perspective. And this topic affords me the opportunity
as well as, to a degree, the responsibility, to provide a frame
of reference or a backdrop, if you will, for the larger theme of
today's forum. Now at the outset, I should confess that as I approach
today's topic, I come from a perspective which is no doubt somewhat
different from that of the other panelists you will be hearing today.
I am certainly no expert on judicial elections or selection processes
in the state court system in Nevada or anywhere else. I've served
as a federal judge for over 22 years. Jeff mentioned my role as
a magistrate judge from 1980 forward, and in 1987, I received an
appointment from President Reagan and was confirmed by the Senate
for a lifetime appointment on good behavior under Article III of
the Constitution.
So unlike some
of the today's panelists you'll hear from, I've never stood for
popular election for a judicial office, and I don't have the personal
insights that many of our panelists may have regarding the merits
and the demerits of that particular process from a perspective of
one who has been there. I've never had important responsibility
for developing or conducting a fair or valid survey of judges. I've
never carried the responsibility for fairly reporting on candidates
for a judicial office, and I certainly have never attempted a scholarly
analysis on the subject, although I did publish one article on judicial
independence in February 1999 edition of the Nevada Lawyer. That's
about as close as I've gotten to that particular scholarly approach.
However, like
many of you, I have read surveys and reports that judicial elections
in the 39 states that permit them are very costly and often acrimonious.
I've read of the New York University's Brennan Center for Justice
Study of the state Supreme Court elections which occurred in 2000
in 33 states which found that judicial candidates raised campaign
contributions of 45.6 million dollars. I've read reports of the
recent American Bar Association which indicate that the majority
of Americans favor election of judges, but that 80 percent also
favor public financing in judicial elections.
I've also
read countless studies, including the October 2002 Harris Interactive
Poll, reported in this month's Federal Lawyer Magazine, which indicates
that the American public does not want it's judges to be too political,
but at the same time wants their candidates for judicial office
to announce their political views. And of course, like many of you,
I've also read the Supreme Court's recent opinion in Republican
Party of Minnesota v. White, which held that placing limits on the
ability of judicial candidates to announce their views on disputed
legal and political issues violates the First Amendment. Thus, although
I've read a lot of material on the subject of judicial elections,
and like every other citizen in this state have observed campaigns
for judicial office, I no doubt have less firsthand experience than
most of our other panelists here today to merit the expression of
a view on the pluses or minuses, the benefits or disabilities of
the various alternative methods of selecting or electing state judges.
I would therefore
like to frame the discussion that will follow this morning with
some thoughts relating to a subject I do have percipient firsthand
knowledge of -- the independence and accountability of those who
hold federal judicial offices. I will leave it to the panelists
who follow, and, of course, to you to consider whether and how these
concepts, as they apply within the federal judiciary, inform the
broader theme of today's forum concerning the selection or election
and evaluation of state judges in Nevada.
Now the concept
of judicial or decisional, as I prefer to call it and many writers
on the subject do, decisional independence is hardly new. One of
the fundamental purposes of our Constitution was to circumscribe
the scope of legislative and executive authority. But an independent
judiciary was seen as one important vehicle to enforce those Constitutional
limits.
Article III,
Section One of the Constitution provides that "judges shall
hold their office during good behavior." The entire point of
the good behavior tenure was to eliminate removal from the bench
on the basis of decisions which were objectionable to the political
majority or to the legislative and executive branches. We have only
to look at the Federalist Papers to see that lifetime tenure for
federal judges was the subject of considerable focus during the
ratification of the Constitution. The Federalist, Numbers 51 and
78, stress that permanent judicial tenure was essential to destroy
all sense of dependence on the Legislative and Executive branches
in making judicial decisions, and to ensure that federal judges
would protect the Constitution against inappropriate political encroachments.
Judicial independence
must, therefore, be viewed, not as an end in itself, but as a means
to promote impartial decision making, and to preserve the Constitution
against encroachments from the Executive and Legislative branches
and from the popular political will of the majority at any given
moment in time. Once judicial independence is understood as a means
to these ends, it becomes apparent that independence also requires
counter balance of accountability, otherwise an unaccountable judge
would be free to disregard the goals that judicial independence
is supposed to serve.
Recognizing
that judicial independence and judicial accountability are complimentary
concepts or allied concepts, the Constitution itself includes a
number of provisions that make the judiciary accountable to the
Legislative and Executive branches and hence to the electorate.
Congress of course has the power, through the impeachment process,
to remove judges it finds to have violated the good behavior standards
articulated in Article Three. Ironically, and as I expect many of
you in this room know, I came to the office I hold now in 1987 after
my predecessor was impeached and removed by Congress from office.
Yet we have, since the impeachment trial of Samuel Chase in 1805,
known that impeachment for judicial decision would not be tolerated
under our Constitutional scheme.
Working jointly,
Congress and the Executive have the authority to regulate the size,
the location and the jurisdiction of our federal courts. Congress
and the Executive together wield the power of the purse and control
the budgets available to the judiciary to perform their responsibilities.
Finally, and notwithstanding recent events which cause some to question
their political capacity to do so expeditiously, the President and
the Senate work together to appoint and confirm federal judges under
Article Three of the Constitution. Beyond this there are a myriad
of rules relating to judicial ethical standards and misconduct which
operate within the federal judiciary itself to address and sanction
inappropriate extra judicial conduct of federal judges.
However, what
the Legislative and Executive branches of Government and thus the
political majority do not have the power to do within the federal
judiciary, at least not directly, is to dictate or to influence
the decisions by a judge by means of real or imagined threats of
removal from office or some other adverse sanction such as diminution
of compensation. Now I don't suggest for a moment that the judicial
opinions, rulings of any judge or panel of judges in the federal
system should be immune from criticism or debate by the public,
the press, the Legislature, or members of the legal profession.
Reasoned debate regarding the judicial decisions is often helpful
and no doubt essential in a free society, and judges are not insulated
or not so insulated as to be unaware of the widespread dissatisfaction
with judicial decisions they might make. Indeed, in a great many
cases, the decisions of a judge may lead to legislative actions
which address or cure the effects of an unpopular decision of a
court or group of courts.
Do judges make
bad decisions? Of course we do. But not all the time. Hopefully
those in this room would agree with that. At least not all of us
all the time. Maybe some of us all the time. We are, as human beings,
sometimes given to error in our judicial decisions, naturally, and
hopefully these are errors which are correctable on appeal. And
we as judges are also cognizant of public dissatisfaction with some
rulings we make through either letters we receive or press accounts
or word of mouth. We're not literally an ivory tower immune to what
is said about things that we may issue in the form of opinions.
But imagine
for a moment a situation in which a judge, a sitting judge, actually
faces the risk of losing his or her judicial office because of an
unpopular decision, even though in the view of that judge, the contentious
view of that judge, that decision is mandated by the law and the
facts of the particular case. Should the prospect that a judge in
such a situation might compromise their judgment in order to remain
in office, not cause all of us some concern. Would such a scenario
not raise a legitimate concern about the ability of the judiciary
operating under such conditions to fulfill the important and independent
role originally intended under our Constitutional scheme of government?
I suggest that
once judges have compromised their oath of office by refusing to
enforce the law as they understand it to be in order to remain in
office, both the judge and the public confidence in the courts have
been irreparably diminished. In short, while criticism is not an
encroachment on the independence of the federal judiciary, the threat
of removal from office or some other sanction for an unpopular decision,
clearly would be.
Now I must
acknowledge that it's easier to focus on judicial independence and
accountability issues as they relate to the federal judiciary than
to address the same kinds of issues with regard to the far more
complex and varied state systems throughout the country. I don't
think you can simply lay the federal judicial system over each state
as a template by which to evaluate the conditions of the judicial
systems within each state for the very simple reason that the state
systems are different. It remains for the citizens of each state
to define what it is that they want from their courts and then to
determine how best to achieve those goals.
In preparation
for today's forum, I came across a recent collection of essays edited
by Steven Burbank and Barry Freedman, entitled Judicial Independence
at the Crossroads. This particular gathering of interdisciplinary
studies on judicial independence notes the wealth of different approaches
to judicial selection and retention employed in the various states
and discourages the temptation to bless one as correct thereby condemning
all others. The various authors note that within the American judicial
system, a variety of factors affect decisional independence and
judicial accountability. They note that, although the judicial selection
of retention process employed in the various states is important,
is an important part of the equation, we should take a broader look
at what it is expected from our various state court systems and
at what motivates and constrains the judges that serve.
In conclusion
when we talk about judicial independence and judicial accountability
of judges in Nevada, I suggest we must begin by asking ourselves
precisely what it is that we want our judges to be independent of,
and what we want them to be accountable for. Once we answer those
questions and define our goals, we can best determine how to advance
the goals through the methods of selection, appointment, election,
or retention of those state judges. In that context we can more
meaningfully assess whether judicial election reform is warranted.
We can better assess whether a shift to public financing of judicial
elections is desirable, whether judicial terms of office should
be extended as in the case of some states to say 10 or 12 years,
rather than 4 or 6 years. We can also address whether public judicial
surveys offer the best method of informing the voting public of
the qualifications of a particular candidate for judicial office,
or whether we should shift away from contested elections to an alternate
method of selection and retention of state judges.
These and other
questions to be addressed by today's panelists are worthy of serious
study because in the final analysis, our state courts, like every
other part of our government, is really what we make of it.
AUDIENCE MEMBER:
Judge, I realize that this is taking you off of the remarks that
you just made but since later on in the day we're examining the
difference between election and appointment as a process for selection
of judges, could you go back to 1987 and relate your experience
when you were nominated from that moment through the process, and
can you offer anything from that experience that might be implementable
into the state system?
JUDGE PRO:
Well, certainly the appointment process that federal judges go through
has evolved over the years, but it's always perhaps been fraught
with a potentiality for some contention. It's a process in which
when you are nominated by the President and awaiting the Senate
confirmation process, you go through a series of background checks
with the Federal Bureau of Investigation, Internal Revenue Service,
in those days -- the American Bar -- well, still, the American Bar
Association, and then you have your confirmation hearing before
the Senate, where you are probed on matters in your background,
which in the view of the Senate Judiciary Committee would test upon
your demeanor, your balance, your decision making ability to a degree,
and this would vary from time to time and environment to environment,
I think different philosophies.
In the case
of a sitting judge such as myself, I'd been a magistrate judge for
six and a half years, so I had a track record, if you will, of decisions
that I had authored that could be scrutinized pretty clearly, and
people could get an idea as to whether I had two heads or one, and
how I might perform as a U.S. District judge. So it certainly was
a rigorous process, it was, following Judge Claiborne, as I did,
that allowed for particular focus because of the circumstances of
his departure from office. And it became the subject of discussion
during my confirmation hearing, because it was the first time in
50 years somebody had kind of sat in that position.
But I also
went through before the confirmation hearings on Robert Bork for
the Supreme Court of the United States which, in the view of many,
kind of altered the way those confirmation hearings were conducted
as well. So I don't know that it really informs the situation as
to election. It's quite a bit different than standing for election,
there's no question about it, but those were my experiences.
AUDIENCE MEMBER:
Judge Pro, I'm not sure how this will impact the discussion today,
but it's certainly topical. You mentioned that the Congress's control
of the purse strings has an impact on the impact of the judiciary.
JUDGE PRO:
Yes, they have no budget right now. And I'm a new chief judge, and
I got handed the gavel by Howard McKibbon last month, and he said, "Congratulations, we have no budget," so --
AUDIENCE MEMBER:
But also, the topic of salaries that our federal judges are being
paid now and how they have actually eroded over the years, what
impact does that have, if any, on the independence of the judiciary?
JUDGE PRO:
Well, I think -- I would hesitate to say that it has. I don't think
I'd characterize what impact it has had on the independence, because
it does not affect the decisional independence of the judiciary.
What we've not received and what we sometimes don't receive or what
they call COLA's or cost of living adjustments that many people
get. There was an ethics reform act of 1989 that theoretically was
going to build that into the law, but it requires an affirmative
vote by Congress to waive a thing called Section 140, and Congress
is kind of reluctant sometimes to do that. Though oddly enough,
this year they gave themselves a COLA, and did not give it to senior
level Executive branch employees or federal judges. I think that
may be addressed early in the next Congress. I think what happens
in terms of salaries -- nobody's going to cry for a federal judge
that makes roughly what a Senator or Congressman makes, 150,000
a year, and is appointed for life.
At the same
time many people who come to the federal bench take substantial
cuts in pay to take that job. Others leave the bench because they
have several children or grandchildren to put through college and
cannot afford to stay, and [because they can] make far more in the
private sector, and still others are dissuaded from considering
or seeking federal judicial appointments because of the salary situation.
At the end of the day that affects a certain segment.
In truth, I
think most of us -- speaking for myself -- most of my career has
been focused on public service. I do that because that's what I've
wanted to do. I was never motivated to seek the most pay, if I was,
I wouldn't be doing what I'm doing. And I think that that's true
of, frankly, of a great many judges, not only federally but state
judges. I don't know anybody in public service who opts for that.
They make those choices. But it does have an adverse impact on attracting
people, on retaining people, and it can be a little frustrating.
AUDIENCE MEMBER:
Besides your salary, what other perks do you get like benefit package,
health care, retirement? Is yours considered the same retirement
as the people on Capitol Hill?
JUDGE PRO:
No. We don't get perks in terms of special insurance. We pay for
our health insurance, our life insurance, just like any other employee
of the federal government does, but under Article Three, the lifetime
appointment means that, in essence, you know, like the Pope, I sit
in that chair until I die. I hold my job until I die. Now [if] I'm
drooling and no longer able to perform, I literally step out of
my court, I may not be a judge. I may take what's called senior
status, reduce my caseload significantly. We have two senior judges
here in Nevada right now, and soon we'll have a third, and they
have a reduced caseload -- Judge George and Judge Leen, and soon
Judge Mahan.
Or you can
fully retire if you want to. And your salary continues for the rest
of your life. So that is the carrot on the stick, if you will. That
says, well, this is a pretty good retirement package. So you don't
have to, then, concern yourself with, you know, how your 401K is
doing or something else. So in that sense that's a perk. As to other
perks, there aren't many because I mentioned the Code of Judicial
Conduct that we have. I don't -- I don't go to hotels and take free
meals. I can't do that. I don't receive tickets to fights or concerts
or something. I can't do that because the Code of Conduct for Judges
really -- I won't say it literally prohibits it, but it's certainly
very strongly frowned upon. And so there are what people might imagine
as perks but really don't exist for members of judiciary.
AUDIENCE MEMBER:
Is there an age requirement, minimum age requirement to take retirement?
JUDGE PRO:
Yes. You have to meet what's called a Rule of 80. You have to be
at least 65 years of age. I'm 55 right now. I have to go 10 more
years. But your number of years in service plus your age must total
80. I'm technically eligible at 59. I will have served enough years
as an Article III judge, but I still can't take senior status until
I reach 65. So you have to go until you're 65. If I retire at age
64, 364 days, my retirement is zero. I don't get anything. So every
judge has to at least unless they become disabled and become eligible
for disability retirement.
AUDIENCE MEMBER:
Is there some position in your mind that the same system in place
for District appointed judges should be the same for Nevada state
judges? The reason we ask that is judicial accountability and independence.
There's such a completely different handling of a judge in your
position as there is for the rest of the judges on the panel. A
lot of us that are working towards the issue of judicial accountability,
our greatest concern is [that] judges judge judges. It's the old
saying the fox guarding the hen house. A lot of us have real serious,
grave concerns. How do you tie into your experiences, as a federal
appointee, with the state judges who are actually supposed to be
the judicial counsel and supposed to be responsive to actual complaints?
We see a big disparity here, very little in the way of accountability.
JUDGE PRO:
Well, I think you can well imagine coming from where I sit with
perspective that I come from, there's a natural reluctance I don't
want to sit here and attempt to offer opinions or pontificate about,
gee, this is what we do in the federal system. Everyone should do
this. I think my comments indicate that I'm not saying that at all.
I don't think you can take necessarily the way our Constitutional
federal system has operated for a long time, since 1789, and you
can just lay it over the state and say, "Ah, if you only do
this, your difficulties would be solved." I'm not suggesting
that in the least. I think you, and I think the people in this room,
and I think the other people on this panel, really have the responsibility
as citizens of the state for defining what it is you want your state
judges to be accountable for or independent of and as you define
that, as the state of Nevada defines that through it's Constitution,
the legislature, and if the people make those determinations, that
you are in a position to decide what can best achieve those particular
goals.
It may be that
an appointment process is desirable. It may be that -- what's called
-- and I hear about this from somebody -- modified Missouri plan
will be the kind of approach where there are retention elections.
Some states trying to assuage some of the concerns about financing,
I know, have looked at public financing of campaigns. Now, there
are probably legal issues about limits that could be put on that.
Other states have extended the time that judges serve in office
instead of four to six years, they get ten or twelve years to insulate
the judges from those concerns. If the point of view is, as it may
be, just the opposite, I want ever one of those judges to be politically
responsive to the electorate. Then I think you take an entirely
different approach and you probably would want elections, you know,
ever two years or or more frequently.
Somebody wins
and somebody loses in every suit, and people can -- particularly
when they've lost a case -- be very cynical about it, and I understand
that. And you know, I make decisions everyday that somebody wins
and somebody loses. I try to get it right, hope that I'm right.
I know. I have no illusions I'm always correct. I know that can't
be true and that there is an appellate process to try and correct
those mistakes or a legislative fix that can occur to correct those
mistakes. But I don't know that there's an easy answer to the concern
that you have, other than to some degree, yeah, we have it good,
however you might think.
AUDIENCE MEMBER:
Can you think of a couple of cases you've had cases that have been
political hot potatoes -- you've had some that have angered some
people or groups of people -- can you share with us a couple of
specific cases where, had you been a state judge, there might have
been organized opposition to you afterwards.
JEFFREY STEMPEL:
Can I just chime in for a second too. Judge Pro is perhaps a little
modest. He recently issued a ruling striking down the Nevada Supreme
Court's ruling prohibiting tradenames for lawyers. And that's an
issue where he has, if you will, ruled against the legal establishment.
Our next speaker
is Judge-Elect Jackie Glass, who will give a report on judicial
elections "from the trenches." And quite a trench it was
for her this past fall as she was the victor in what most observers
regard as the most fiercely contested judicial election of last
Fall. She defeated a sitting Judge (the Honorable Jeffrey Sobel)
in a campaign that involved substantial advertising, with a more
hard-hitting, adversarial tone than that found in most judicial
campaigns.
Jackie Glass
is a former news reporter, a criminal defense [lawyer working] as
a partner in the Law firm of Wolfson and Glass. She will take her
seat on the Clark County Eighth Judicial District bench in January
2003.
Running for Judicial Office: A Report
from the Trenches
Jackie Glass
JACKIE GLASS:
Thank you. I'm very happy to be here. I think it's a little different
doing this now than it was before. I'm -- I was pleased obviously
with the way the election came out, and I can tell you a little
bit about how that happened. When I first got the inkling, I guess
not last year but the year before, that I wanted to run, I told
my husband, who's my law partner, Steve Wolfson, and he said, "Okay,
let's talk about it." So we talked about it and at that point
I just decided that I was going to run. And we started asking around
about who handles political campaigns for judges.
I received
recommendations made to me, and, I don't know, some of you in the
media know who I had handling my campaign. It was Gary Gray of Gray
and Associates. Gary Gray and Mark Benoit handled my campaign. And
if you're going to run for office, and you're going to run for,
as far as I'm concerned, a seat as a judge, one of the smartest
things you can do is obtain a good political consultant to help
guide you. I've been a lawyer for 18 years. Before that, I was in
the media. And even though I was in the media, it really did help
to have someone who had the expertise in knowing how to handle a
campaign, to advise you.
So the first
thing that we did, or I did, was obtain a good consultant. And as
it progressed, I had somebody along the way tell me, "Whatever
Gary tells you, you listen to." And actually in looking back
at it, they were right. What that person did for me, what they did
for me, was develop a theme for the campaign, prepare me for dealing
with speeches and interviews and the press, advised me who to contact.
And you -- this is a very large county, Clark County is huge --
and to try to take on a countywide race [when you] never have been
in it before, is kind of a daunting task. You can't be everywhere.
You just can't be physically everywhere. I tried. But you can't
be everywhere. So based on their advice, I started making contacts
with other places. I was very fortunate in my situation. I was able
to campaign quite a bit during the last year. I actually had what
I considered to be an anniversary of my first public event, which
was November 2001. I went to a mayor's prayer breakfast. And I remember
that may be the first event that I went out and started meeting
people. That was in November. We aren't allowed to raise money until
240 days prior to the primary, so that was, I believe, January 7,
2001. So I started going places.
I'll give you
examples of some of the places that I went to. I went to the chamber
of commerce, the Latin chamber, the urban chamber, the Asian chamber,
and I went month after month after month until those people got
to know who I was. I went through the standards and policies every
-- the first Wednesday of every month, 7:00 in the morning. I spent
a lot of time with -- there's a lot of different groups that are
grass roots political groups. I went to their functions, and I met
people. And I shook the same hands over and over and over again
until these people got to know me.
I went to meet
the candidate functions. I went to parades. I went everywhere that
I could find a group. Now sometimes there were more of us candidates
than there were people to talk to, but I kept telling myself that
for every one person I might reach out to, they'll go back and tell
somebody, and maybe that person will tell somebody, and I really,
truly believe that a lot of all that grass roots that I did paid
off.
There was a
time during the race when it came to be primary time, I didn't have
a primary because there was only two of us in the race, and I got
phone calls from people asking me why wasn't I on the ballot, and
I'd go and get my hair done and my hairdresser would say, half of
my clients called asking why weren't you on that ballot. Where are
you? People are worried. Why aren't you there? And I was surprised
at that point that people were actually looking for me and wondering
where I was. And I thought this is a good thing for them to look
for me on the November ballot.
When I went
out and met people, people were so happy to actually meet the candidate,
particularly the judge candidates. The feedback I got was -- there
are so many people running for judge, we don't know the people who
are running for judge, so we appreciate you coming so that we can
see who you are and try to get to know something about you. I heard
that over and over and over again on the campaign. Going out to
meet grass roots, I loved it.
As a lawyer,
and I married a lawyer, I was insulated to a degree from much of
the world. You don't realize how insulated you are until you go
out and do something like this, and you start meeting all the people
out in the community who are actually doing very positive things.
Trying to make this community a better place, and that was really
a wonderful benefit of the experience.
One of the
things that the judges had to do in this election, and I suspect
it may change based on recent court decisions, the White case, which
is going to change I think some of the way the judges can talk on
issues because up to this point the judicial cannons prevent us
from talking about issues. So basically when you're dealing with
judge candidates, you're -- you're kind of getting who we are, and
we deal with issues such as work ethic and perhaps past feeling
on cases, and in some elections there were ethical discussions.
So it's hard to put -- there's not a lot to put out there as far
as issues.
So the endorsements
that the judge candidates receive turn out to be very important
because as a candidate, they kind of speak for you as to what the
various people in the community believe. So I was also very fortunate
during this election cycle that I got a substantial number of endorsements.
I filled out many forms, I went to many interviews, and I was well
received. And I prepared for those meetings, and I worked hard at
filling out my forms and making sure that they got all the information
that they needed. And that resulted in a lot of support out there,
which I also think helped in my success.
Let's talk
about the money. We have to. The only way to get elected -- well,
the only way I believe I could have gotten elected is by getting
my message out. And that was grass roots, and that was my media
campaign, and I know there are a lot of people who do not believe
in judges having to raise money. The people who give money to judge
races are attorneys, your families, and your friends. That's it.
Now raising money is not fun. I didn't enjoy that, but it was a
necessary part of the campaign because without the money, I couldn't
fund my media campaign.
One frequent
concern about elected judges is whether I can still be fair because
lawyer X gave me money and lawyer Y didn't give me money. I consider
myself to be an honorable person, an honest person, and have integrity.
And I believe in my heart that I can sit in a courtroom and make
decisions, and I'm not going to have a list [telling me] lawyer
A gave me money and lawyer B gave me money. You base your decisions
on fact and the evidence and the law. And that's exactly what I
plan to do.
Impact. Impact
on my family and me. It was exhausting. There were some days when
I did something in the morning, something at lunch, and two or three
events after 5:00. I would come home and sit on my couch, and my
kids would try to talk to me and I couldn't talk to them. It was
just exhausting. Physically and mentally. And I got to tell you,
I don't think my feet will ever be the same again. I think I ruined
my feet for good. Because you go to these campaign functions or
cocktail parties and dinners and you stand on your feet and you
walk around and you don't realize what you're doing to yourself
until you get done and you say, Oh my gosh, I'll never walk again.
My husband.
I could not have done what I did without him, [without] the support
of my husband. He was there for me, and he went places with me.
He shook people's hands. When I needed him to be there with the
kids -- I have an 11-year-old and a 15-year-old daughter. I have
two daughters, when I needed him to pick them up and take them places,
he was there. And I could not have gotten through this the way I
did without his help and support. The other thing that he was there
for is as a law partner. I was able to refer any cases that came
in for me to him and my associate. And that took a lot of the burden
off me. I was -- I was probably one of the few people -- I still
came in the office every single day, and I stayed there from early
in the morning until late at night, and I still had cases and still
had things that I did follow up on, but I did not take any new cases
towards the last half of the campaign. So I was very fortunate to
be able to do that, and that gave me a lot of time to go out and
campaign.
My children.
They were troopers too. They did say to me that if they don't have
to do another parade for a while, they'd be extremely grateful for
that. They went to the candidate functions. My 15 year old drove
out to the Moapa Valley with me. She'd never been out there before.
She said, "Where do they shop, mom?" And she was asking
one of the girls who lived there about living in a rural community,
what it was like, and she met a lot of people. She stood right by
me and smiled and shook hands and campaigned, and this was a great
experience for her. My kids went to a lot of candidate functions.
Voters saw
that I was someone who had family, and I think that reflected positively
on me. So I -- it really does help when you go through this experience
to have the support of family, and I really think it does make a
difference. And the word that will probably live forever in my family
is "function." "Do you have another function to go
to, mom? What function are you going to tonight?" We did a
lot of functions together.
The media campaign
was a necessary evil. Since I was running against an incumbent,
and believe me all the way through, I heard people say you're running
against an incumbent, you're running against an incumbent, how do
you think you can do that? You know, it's going to be -- it's such
a hard thing to run against an incumbent. Well, when I analyzed
where I was going to run, I could have gone in an open seat. There
were two -- there are 20 and 21 new seats. Department 7, Judge [Thomas]
Gibbons vacated, and department 10, Judge [Jack] Lehman was retiring.
We had weeks and weeks and weeks of discussion trying to decide
where I was going to run and what would be best for me. I eventually
determined to run for the Department 5 position. Despite what some
people may have reported, there was no person issue that caused
me to run in the department that I ran in.
I looked at
the situation and decided to run where I could have had the most
impact, and I would know what I was up against as opposed to running
in an open seat where, as it turned out, in one department they
had five people running and in another department there were four
people running, so I wouldn't know my opposition. I wouldn't know
what I was dealing with, until after they filed, and it would be
--it would be a different situation. So when I decided to run in
Department 5, I knew what was there, I knew what issues could be
used and could be raised, and there was a great deal of contrast
in our campaign, and I also think that serves people.
The media is
incredibly -- and when I'm talking about media, I'm talking about
my television campaign, and direct mail, and I think that this particular
race because of the issues raised and because of the difference
in folks that were running, I did get a lot, there was a lot of
press out there about my race, when I don't think there normally
is. And so I think that also was very helpful. You can't be everywhere
in Clark County. You just can't. I didn't make it to Searchlight.
I didn't make it to Laughlin. But I went a lot of other places.
And so you got to do what you have to do. I did television as probably
many of you know. And I did direct mail. And it really was difficult
for me to accept the fact that direct mail works because I don't
know about any of you, but when you get it in the mail, and you
get so much of it, I -- you know, until this election when I'm reading
everybody's direct mail, you usually get it and a lot of it goes
in the trash.
But my consultant
told me that's the only way to get your name into the hands of the
voting public, because on television, even though television reaches
a lot more people, how many of those people are actually going to
vote? The target mail is directed at the voters. You got those lists
from the election front, and it really helps. So I didn't use any
radio at all. My campaign was basically a combination of grass roots
-- intense grass roots -- TV, and direct mail. And that ends up
resulting in a 51 to 39 percent victory on election day.
The issue regarding
campaign funding, and I know that's going to be addressed later
-- I know there's some talk about trying to have publicly funded
elections, but I don't know in this day and age in our state [if]
that's going to work based on the budget deficits that we have and
whether the public would be amenable to having elections funded
for judges. I don't think so. I suspect it's going to stay the way
it is, at least for a little while. I hope Judge Pro was wrong and
we don't see a move to shorter terms, with things like elections
every two years. I need six years to recover.
AUDIENCE MEMBER:
Due to the fact that you worked so hard during this campaign, and
by the way, you're visiting all of these groups, I'd assume your
opponent did the same thing. I'm sure he campaigned. In view of
the experience you had during the election, do you think that judges
should be elected or appointed?
JACKIE GLASS:
I believe they should be elected. I don't think that I would have
this opportunity to be a judge if the position were not open for
election. I think that it's important that we have people who want
to run for elected office, who want to be a judge, [and] to give
them the opportunity to be able to run as opposed to trying to be
appointed and then retained.
AUDIENCE MEMBER:
You give all the credit to the medium of your message. What about
the content?
JACKIE GLASS:
The content -- well, the content went along with it. The content
was that I first went out and said everywhere [what] I could say
-- that I would be a full time hard working judge. That was my message.
And I did not say a word about my opponent until the end, and then
that message was he's not there. He's not coming to work, and these
are some other issues regarding his rulings and his sentencing that
you need to be aware of. So the message was there. I mean the message
was important as well, but for most of the campaign I went out talking
about me, and what I planned to do, and never once out in a speech
or talk even acknowledged that there was somebody else that needed
to be looked at. But in the end you certainly brought the message
home with the content of what was in the mailers and on TV. Yes?
AUDIENCE MEMBER:
I had a question about the endorsements. A lot of people when they
go for endorsements, they go for the DA's office, the Defenders
Office, the Police Department. Well, as a lawyer you say you disqualified
yourself. As someone coming before you on the bench -- take a lawyer
for a defendant from your firm --
JACKIE GLASS:
Oh, I cannot have the person -- anybody -- who I've represented
appear in front of me.
AUDIENCE MEMBER:
But right now we have the former DA who is now in Department 17
taking over civil cases. He in essence is the lawyer for the LVMPD.
So since he is technically he represents the Las Vegas Metropolitan
Police Department, do you believe that there is technically bias
that could come because of election through that. Saying that he
would almost have to disqualify himself in every case.
JACKIE GLASS:
There is a real move, and there has been for judges to be discouraged
from recusing themselves because of conflict. They really the court
administration and the Supreme Court and the court and the judges
-- don't want to see people conflicting out of cases very easily.
I don't think that just because David -- you're talking about David
Wall, right?
AUDIENCE MEMBER:
No. Stewart Bell.
JACKIE GLASS:
Oh, Stew Bell, the DA, I'm sorry. Stew Bell as the DA now sitting
as a civil judge I don't know that he'd have to conflict himself
out. I think that's a question that's better served to ask Stew.
Because I was in private practice, my former clients cannot appear
in front of me. My husband and former law partner will not appear
in front of me. My associate won't appear in front of me, and anybody
who is a tenant in my law building is not coming in front of me
because there's a relationship there, and they're on my list and
they're not coming in front of me. That's fine. As far as whether
Stew will have to recuse himself, it's whether when he sits and
looks at people in front of him, whether he feels that he can't
be unbiased and can't be fair, and I think he'll have to make those
judgments on a case by case basis.
AUDIENCE MEMBER:
Okay, and you don't believe that any endorsements by the Police
Department. Things like that --
JACKIE GLASS:
No, I mean, I was endorsed by all the major police departments,
and if I had to recuse everybody, all the police officers, I wouldn't
have much of a criminal calendar.
AUDIENCE MEMBER:
Right. But if they were appointed instead of endorsed by you, these
individuals might look better.
JACKIE GLASS:
And in the appointment process, if people were vying for appointments,
I still suspect that there is a sort of endorsement procedure and
to get their voices heard and to have influence on whatever body
is going to be making the appointment, so I think that there would
be the same problem whether it was election or appointment, in the
back.
AUDIENCE MEMBER:
I agree with you as far as I think it's better for the most part
that judges are elected but one of my biggest concerns is no judge
ever runs on the platform that I'll protect the defendant's Constitutional
rights. I think many times and in many ways judges are very reluctant
to find the opportunity or go with defendants, whatever it might
be, [and find them] not guilty for fear of being deemed the person
that's soft on crime. I think that poses an extremely troubling
situation for society at large because particularly in the Municipal
Court, when all the trials are bench trials, I have -- my tendency
is to believe that most judges are for the most part rubber stamp
the case. How would you respond to that?
JACKIE GLASS:
I've been a criminal defense attorney for the last 12 years, and
I've actually had motions ruled in my favor. Down in Muni Court,
I've actually won a number of trials. From your perspective, and
I'm -- in Muni Court they handle misdemeanors, not that they're
been important to the people who come -- who are charged with these
misdemeanors, but it's not a court that's so high profile that there's
somebody sitting there watching what the Municipal Court judges
do all the time. I know what the issues are as far as what comes
before us on those issues in protecting people's rights. I have
to be able to do what's right and what's fair and what's just. That's
what judges do. So I know that there's thinking that we have to
be mindful of what is politically correct and it can't be that if
you're so worried about somebody's going to say and the criticism
you're going to come under because of your decision -- I've got
to be able to live with my decisions. And I wouldn't be able to
sleep at night if I made a decision that I made for political correctness
as opposed to what's right for the person who's appearing in front
of me.
AUDIENCE MEMBER:
I'd like to follow up. You said that you wouldn't believe you'd
have the same opportunities if this was an appointment process.
Why?
JACKIE GLASS:
Well, I wasn't politically active then. And I wasn't in the political
process of knowing the people who make those decisions, and I've
been here 24 years. I don't have any connections to anything. I'm
just me. And so I think that the only way that I was going to ever
become a judge was to run and be elected by the people as opposed
to being appointed.
AUDIENCE MEMBER:
There's been a lot in the news about campaign contributions, but
how would you, as an elected judge, feel about an across the board
cap on campaign spending? The reason I'm asking is we think there's
a lot of voter apathy and specific situations in the state of Nevada
to get the people out to the polls. The people who do show up --
some just pick the name they see the most, whether or not that person
is qualified. How would you feel about having an actual cap per
candidate on campaign spending? For example, $50,00 per candidate
you can spend on advertising. How would you feel bout a cap on those
funds?
JACKIE GLASS:
If it was equal to everybody, I don't know that I would mind a cap.
I still think that what made the difference in my race was the grass
roots. In this election cycle, there were 21 District Court judges
that were up at the same time, and then there were six Family Court
judges that were up, so that's 27 judges that are all out there
with their hands out saying I need a contribution, please help me.
JEFFREY STEMPEL:
There is a bi-annual survey of the Bar of the judiciary that's conducted
by the Las Vegas Review-Journal and the Clark County Bar Association.
Our next speakers have been instrumental in that survey.
Ten Years of Surveying Nevada Judges:
A Sociologist's Perspective
Donald Carns and Nancy Downey
DONALD CARNS:
I'm here principally to introduce Nancy Downey. It's really her
work. But I would like to tell you just a little bit about the history
of this and how it came about. I actually -- I was a Journalism
major for about a year-and-a-half back in undergraduate days, and
I think I got a little ink in my blood. So when I came out here,
I just sort of fell into it -- I had a background in survey research
-- I kind of fell into a role at the Review-Journal. Initially through
[Managing Editors] A.D. Hopkins and then Tom Mitchell, I met you,
and I think even [Publisher] Sherm Frederick came down and blessed
it at one point or another, but what I was asked to do was to design
up a system whereby we could evaluate the judges in town by using
lawyers' input.
I initially
designed the evaluation form. We had various conversations about
it. We got it down to a point where the RJ felt that, you know,
it was appropriate, and I did too, and so the first couple of those
biannual estimations or data collection routines took place. I,
of course, faded out of it at that point and Nancy came in. Nancy's
a professional survey research person, actually one of my students
at UNLV, one of the best in fact. But I in no way take credit for
her work. She has been providing for us data on a biannual basis
of how lawyers look at judges from the point of view of a number
of issues. And this has of course been published in the Review-Journal
as well as it's available in a report form from Nancy's shop.
NANCY DOWNEY:
As Dr. Carns mentioned, we started doing formal reports in 1994,
and I wanted to tell you about some of the challenges that we face
from a methodological standpoint. First of all, the survey instrument
must be a blend of cost effectiveness regarding printing, mailing
costs, data entry, efficiency and ease of completing the form to
encourage high response rates. We sought a format that people would
complete, that would not take very long, and that would also be
clear and understandable.
We also had
the challenge of increasing the level of trust in the process itself,
particularly in the process of anonymity. And if you are not familiar
with the questionnaire, I have copies up here that you may review.
We ask the attorneys who receive these to sign an Affirmation Card
showing that they are the ones that filled it out because obviously
we have to safeguard against fraud to protect those who are being
evaluated, and while at the same time asking the respondent to trust
us to live up to our end of the bargain. So that when we receive
the Affirmation Card that proves that individual is qualified to
complete the ballot question that we sent out. We separate the names
from the ballot, and then at no other time are we able to identify
who made the comments and completed the responses on that, so that
all of the data that we select just becomes numerically merged into
the entire report.
The rules are
stated in the instructions. After mailing, there is an honor system
requiring the parties to be responsible and act with integrity and
neutrality. Despite the instructions, there are unusable ballots.
For example, in 2002, 2,986 were mailed. We received 713 back, but
only 676 of those were eligible for inclusion.
[Here are]
some of the problems that we encountered with the ballots that came
in. Four percent were returned without the required affirmation.
We did not tabulate those. About one percent was received after
the designated closing date. And obviously when we have a deadline
-- we have to report this, so the newspapers can have time to review
it and come up with their stories. We had to have a cutoff point,
and we also had to look at the overall percent of return and decide
if this is representative of the population that we're sampling.
The percent of return in the state is pretty consistent, between
21 percent and 27 percent. It fluctuates just a little bit from
year to year. And those are just approximate. When I say that it's
approximate, [it is] because the actual number that we send out
compared to the number that we receive -- how we calculate that
percent of return -- does not give the true picture of the number
who might be eligible to complete the questionnaire to begin with.
The response rates are actual rates of return, and do not reflect
the true rates of response. It's difficult to determine the size
of the eligible population of attorneys because of self-selection
as to eligibility. Attorneys decide, once they read the rules, whether
they are eligible. They also need to decide how much they appear
before certain judges, how knowledgeable they feel about those judges
and if they feel qualified to respond. So we have not been able
to track or compare what the actual population size is that we're
surveying. So there's a challenge that we could try to work on in
the future to get more specific.
The way they
return those questionnaires is interesting as well. Twenty five
percent return them in the first three days. So we know that there
is some interest, and there is a conscientious attempt not to procrastinate.
To get these things in, but of course the rest of them, 75 percent
of them, are returned within the first two weeks, but they trickle
in over a period of four to five weeks. So we do like to allow enough
time for them to have the time to return.
Another challenge
is developing rating scales and ways of comparing each judge's score
to the others. So an adequacy score was added, I believe, in the
year 2000 study, that was a way to track the judge's overall performance
on all questions, rather than having to compare each judge on each
and every question that was asked. So the adequacy score is really
the cumulative average rating. It's the sum of the "adequate"
and "more than adequate" categories of responses divided
by the total number of questions. So we get kind of an average score
for the whole questionnaire.
We also calculate
a retention score. The number of people that believe the judge should
be retained versus the people that believe they should not be retained,
and we put those in a hopefully user friendly kind of chart with
the retention scores to compare judges year to year as well as between
judges. So it's a good way to track someone's evaluation scores
if they have been in office for a period of years. You can see if
there's been an improvement or you can see if there's been a decline.
AUDIENCE MEMBER:
Who pays for the surveys?
NANCY DOWNEY:
I was contracted by the Las Vegas Review Journal and the Clark County
Bar Association, in combination, so I'm not sure exactly what percent
each of those pay into that. I consider both to be my clients.
AUDIENCE MEMBER:
Have you ever considered asking the people that appear in the arenas
themselves besides the lawyers, cause it's like -- it's a little
bit of a fox watching the hen house going on when you ask the lawyers
if you know a judge or rate one of their own. Have you ever considered
the participants, people that have appeared before them?
NANCY DOWNEY:
We haven't so far, but I would be happy to extend the scope of my
research because it's something that we could do. It would be another
challenge to include that and compare the data. It certainly is
feasible, but whether or not the clients want to include that as
part of the research process is up to them.
JOHN CURTAS:
I have to disagree with the last questioner. I'm one of those chickens
that watches the foxes. After biting my tongue for two years, I
look forward to getting this thing, and I think both positively
and negatively. I think this is one of the most critical and important
things that's done in this county with regards to the legal system,
and I applaud you for the work that you're doing. I am appalled
when I talk to lawyers that throw them away or don't send them back.
And I rail at them. So I'm doing my part to get that 25 percent
up as much as I can. I do have one suggestion. We have at least
three offices now that are making decisions that are very impactful.
And they are appointed. They are not elected in the same way. They
are appointed by the judges. And they are the Probate Commissioner,
the Discovery Commissioner, and the Arbitration Commissioner. And
I would very much like to see those offices included in your next
and future surveys.
AUDIENCE MEMBER:
I would just like to know, is it open to the public? Do you have
the reports that people can go and request?
NANCY AKRIDGE:
My reports were sent directly to the Clark County Bar Association.
I retain all of the database files and the reports on disk, and
I have been asked to count this for access at the County Center
for Survey Research here at UNLV. That is in the process of being
setup. In other words, researchers can actually get to see the database
as well and perform further studies on this. In fact what I don't
do in here, and which people have asked me to do later, is sometimes
compare responses by gender, let's say, or compare responses by
their -- the number of years that the attorney has been in Las Vegas.
Those kind of things, we can always do cross tabulations to get
some more information.
CAM FERENBACH:
I just want to say, and I'll introduce myself I think in a minute,
[that] I'm the President of the Clark County Bar Association this
year. It's a volunteer job. I don't get paid to do it. In any event,
we end up with a box full of those after it's over. We send each
judge one, you know, but they're available for five dollars at our
office (530 South Ninth Street, corner of Bonneville and Ninth in
Downtown Las Vegas; 702-387-6011), as long as they last.
DONALD CARNS:
Just chat on that. If an attorney were to submit a false affidavit,
he's at risk of losing his law license. I can't think of a rational
attorney who would do that just so that they could take a jab at
somebody on the survey. I appreciate the point that it's fair to
evaluate the trust and verify, but I think the risk would be so
high that if even a lawyer were to attempt it to editorialize and
submit an inaccurate affidavit -- I can't think of anybody who would
do that.
NANCY DOWNEY:
The main reason we validate those by Bar number is so that we don't
get, let's say, 10, 20, 30 surveys with the same Bar number, because
obviously we don't check signatures or anything like that, so --
but if we happen to get too many, you know, kind of ballot box stuffing,
we would notice that.
AUDIENCE MEMBER:
Has there been any sort of systematic follow up with, you know,
segments or things like that or stratified sampling to try to get
a picture of whether the respondents are different from the nonrespondents.
For example, would it be possible that plaintiffs' lawyers respond
in inordinate numbers, or that defense lawyers respond in inordinate
numbers. And I'd be curious as to whether there's any relationship
or whether anything can be done to make sure that it is a representational
process?
NANCY DOWNEY:
I did not compare those to see if they were representational, but
we do have a table where we talk about the type of practice of the
respondents. Some people elect not to answer that question. Sometimes
we don't even know the gender. There might be some. In fact, there
were 4.6 percent that did not tell us [whether] they were male or
female and we have no way of knowing that.
AUDIENCE MEMBER:
What if we reverse the process and have judges evaluate the attorneys?
CAM FERENBACH:
I think Dick made the first comment that you do that everyday. When
you go in and argue a case in front of a judge, you get some type
of feedback pretty quickly. But I think the other thing is -- I
mean, we do have the Martindale-Hubbell rating system which judges
are participating in, that is, you know, an ongoing process. Of
course that's acommercial enterprise, and is not foolproof, but
[it] is helpful.
JEFFREY STEMPEL:
Cam Ferenbach of the law firm of Lionel, Sawyer & Collins, the
President of the Clark County Bar Association is already known to
the audience. Joining Cam is Constance Akridge from Wadhams & Akridge. Connie is the president elect of the Clark County Bar as
well as an active litigator.
Keeping Judges Accountable: An Attorney's
Perspective
Cam Ferenbach and Constance Akridge
CAM FERENBACH:
Let me just take a minute here and explain about the Clark County
Bar Association because we have quite a cross section of people
here. There is the State Bar Association, the State Bar of Nevada.
That is the organization that administers the Bar Exam. If you're
going to be an attorney in this state, you have to pass the Bar
Exam and be licensed by the State Bar. You violate rules of ethics,
you're subject to disciplinary procedures from the State Bar of
Nevada. That's a completely separate entity from the Clark County
Bar. In fact it's pretty much an arm of government. It answers to
the Nevada Supreme Court. It answers to the Nevada Supreme Court.
The Clark County Bar Association is strictly a voluntary organization
of lawyers that frankly, I think -- if you go way back in our history,
it was an excuse to have lunch, like a three martini lunch once
a month, that's, it was kind of like a lodge really. A bunch of
old boys that weren't even -- in fact they used to meet at an all-male
club downtown. So our history may be a bit tarnished, but we have
come a long way. We really have. And now we are very proud to say
that we have more than 2,200 members in Clark County, the Clark
County Bar Association. They pay dues as volunteers, they pay their
dues, they support our programs. We have various volunteer programs
in town.
You may have
noticed that the Downey Research Center sent flyers out to 2,900
lawyers, not 2,200 lawyers, and the reason for that is that Downey
Research sends the flyers out to every licensed Nevada lawyer in
the County who has an address in the county and [which] happens
to be their residence address in the county, because that's the
way the State Bar organizes itself by residences, not office addresses.
And the reason they do that is of course that some law firms have
offices in various places and attorneys go back and forth, and because
the State Bar
elects their representatives by where you live, they're organized
by residence. Last year there were 2900 licensed Nevada lawyers
of record with residence in Clark County. Each received a survey.
As to the issue
of impact, I have practiced law for more than 20 years. So I was
a lawyer in state court for 10 years when there was no survey, and
I've been one for about 10 years now when there was, and I can tell
you from a lawyer's point of view, there's a world of difference
from my earlier life as a lawyer in court. During the first ten
years, of course, I was new, judges didn't know me, and all that.
They didn't really care much what I thought about how they were
doing their jobs. They were the judge, I was the lawyer. Like it
or lump it. If I needed to sit there for a half an hour before they
come on the bench, well, that's too bad. You know, I'll just wait
and bill my client for that, and you know, they're not going to
read the briefs and just decide it based on how they feel in the
morning. I was not going to stand up and argue with the judge, say "Hey, you're not doing your job right." I mean, I'm going
to resemble Rumpole of the Bailey, with a certain amount of groveling.
Who of us knows
really how many voters read the RJ pole and how they're influenced
by it, but you know what? The judges are concerned about that. And
it made a big difference in the way they treated lawyers in court.
Now whether that's good or bad for society, I don't know. But I
can tell you I'm a big supporter of this program, it's made my life
better, and I do believe it has enhanced the operation of the judicial
system and maybe even [increased] access to justice issues. The
Survey is bi-annual. It presents a significant burden on the County
Bar to run this program, but again, I think it's a very good one.
During the Fall 2002 election I would conservatively estimate that
among my friends and acquaintances in town, I probably got 40 calls
asking me who should I vote for, for judge. You know, it makes sense.
Lay persons just do not know who the judges are. The judges appreciate
the impact of the Survey and have become accountable.
Independence
and accountability present twin issues in tension. What things are
important to accountability? What things are important for independence?
We've designed the survey to try to make judges more accountable
but to be fair as well. Occasionally one hears rumors of concerted
efforts to respond to the Survey in a way that will hurt or help
certain judges. But attorneys have a professional responsibility
to be honest, particularly if the lawyer signs that affidavit. The
Clark County Bar Association that I know and the lawyers that practice
here make it hard for me to imagine that that would go on. But feelings
run high and some people aren't happy with what's said, and rumors
get started.
The system
works on the integrity of the lawyers, who are officers of the court,
doing this the way they're supposed to do it. My belief is that
on the whole everyone has done it. I mean, I don't know all the
judges, but I've read the reports and there are some things that
were, you know, on the whole. More often than not, I pretty much
agreed with the numbers [that] came out. There can be concerns over
the overall score and the Survey format, when it is published, in
which both a positive comment and a negative comment are given about
each of the judges in the Survey. The comments are anonymous. They
come from articulate people, lawyers that talk for a living, and
they can think some real zingers, and it's hard for the newspaper
to resist printing those negative comments. Unfortunately, you may
have a judge with a 98 percent rating in being fair on gender but
this is tarnished by an isolated comment that this judge "never
rules for a woman lawyer." How often will the average reader
look at the numbers and see, hey, this is a 98 percent fair rating?
Instead, they may remember the isolated comment that this judge
"never rules for women."
CONSTANCE AKRIDGE:
Methodologically speaking, we could turn those comments into a number
code system and rate them, you know, on a certain scale as to positive
or negative, and give you some statistics on that. Currently, however,
we don't analyze those comments. We just turn those over to the
client.
CAM FERENBACH:
Or at least some way to make sure that if the comment is reported,
it be vetted to make sure it's consistent with the overall fair
-- I think it should be fair overall. Yes.
AUDIENCE MEMBER:
Why don't you do this kind of survey for federal judges, or do you
really believe they are so completely immune from being responsive?
CAM FERENBACH:
When we had our last meeting with AB and doing up the survey, it
caused me to think that the survey really has another function,
and I think making this handout available to all judges partly serves
that function. It's a feedback mechanism to the judges. I mean,
there's very detailed information in there, and if they want to
take it for what it's worth, they can get feedback. So for the federal
judges, it would be a way to give feedback to them even though there's
no election going. I do happen to know without going into any detail
[that] there's not a lot of interest in the federal bar to have
it included in the survey, and the concern that it might create
new problems. Federal judges are rated by other organizations. Surveys
are done, information is available, whether it's done through the
government or commercially. There is evaluation on the national
level already -- the Review-Journal would be that interested in
it? Maybe they would, but I don't think the County Bar would.
AUDIENCE MEMBER:
Do you feel that judges should be elected or appointed?
CAM FERENBACH:
Overall, I would prefer something like the Missouri plan or modified
Missouri plan. The main reason is that there have been some elections
over the years -- and maybe they can talk about them some more --
that really degenerated into [the situation] when you have one person
running against an incumbent, you know, all kinds of accusations
get made, it becomes personal, and all this sort of things. I think
that if you have this appointment process with the proper safeguards
and have it open to any qualified attorney such as Jackie Glass
-- I think she's downplaying her ability to be able to get appointed
if she really wanted to under an appointment system. But be that
as it may, I think an appointment system with some type of retention
where you either retain or not, so that if the judge for whatever
reason is perceived by the electorate as not doing his or her job,
they could be removed and then, you know, then someone else could
take the place.
When you have
direct elections, then you have the fundraising thing and maybe
this was supposed to be an attorney's perspective. I don't think
I have to say much what the attorney's perspective is when there's
27 judges running and every one of them is calling up your law firm
wanting money. You know, it's just -- it's unseemly; it creates
all the wrong impressions to lay persons thinking everybody's got
to pay off the judges in order to get a fair shake. It's not true.
I believe that Judge Glass was accurate, and really, every judge
that I've appeared in front of is trying to do the best job he or
she can do to fulfill the oath. But it certainly creates a terrible
appearance when during these election cycle every lawyer in town
that goes to court feels pressured to give money to judges and show
up at these functions and make sure that, you know, it's not because
you think you're going to get favoritism by giving them money, but
somehow a concern that if you don't give them money, and that everybody
else does, you know, it just creates a very bad view.
AUDIENCE MEMBER:
How about term limits or a single, long term for judges? Or, you
can have judges serve your tour of duty. After you've been a lawyer
for five to seven years in the state, your name's put in a lottery,
you're picked to serve the term, four to six years. Your name is
removed from that lottery after you served your term. That way there's
problem with fund raising or running for reelection.
CAM FERENBACH:
It would almost be like being jury duty for judges only a little
bit longer. That's an interesting proposal. You would have to consider
the issue of compensation. There are a number of federal judges
making a lot less money now than they were when they were in private
practice. But of course they have the long-term protection.
AUDIENCE MEMBER:
Yeah, as a member of the voting public, one of the problems I see
is evaluating the candidates. There's no way for the average voter
to determine the competence of the judges seeking reelection, and
we know that there are incompetent judges. And we know the attorneys
know the incompetent judges, and we know the judges know who the
incompetent judges are. But this has never crossed course so that
I can make a decision
JOHN CURTIS:
I think by and large there is a lot of information out there. I
mean I saw all sides as a candidate, and as a candidate you subscribe
to everything and you watch numbers everyday, whether you want to
or not. Many days you don't, with you I think if you pay attention
-- a voter who pays attention to both our newspapers, and the TV
reporting and watches the commercials, I think you can get a pretty
informed education about the qualifications of the judicial candidates
and read the survey. I mean, you have to make the effort. It's not
as easy as lining up the partisan of [Democratic congressional candidate]
Dario Herrera, you know, versus [Republic Congressman] John Porter
to see what they stand for. You have to dig a little deeper, you
have to pay closer attention, but by and large, I would say, I was
impressed by the media's attention to the judicial race, including
the judicial poll, and any voter who wanted to read everything and
wanted to go on the Web and see things and pay attention to these
surveys, could find out an awful lot about the candidates and make
-- maybe not as informed a decision as Cam Ferenbach can make, or
Connie Akridge, but certainly an informed decision based upon what
the media is putting out there about the judicial candidates.
AUDIENCE MEMBER:
I worked in polling places, and seen the voters come in, and some
of the questions they ask. The average voter it's the number of
people who do the research to determine whether this person is competent
or that person is incompetent. It turns out the overall voting public
walks in I had a lady walk in, she says where's the button I push
for the Democrats or Republicans. This is the mentality.
CAM FERENBACH:
I think [this is the case] in some states. There are about a dozen
or half a dozen jurisdictions that have partisan elections. In thinking
of -- this may not have time -- but what I argue is if voters really
are relatively clueless, particularly when we have a cavalry charge
of 27 offices or something, maybe party cues are better than nothing.
You know, you say, "I'm a Republican, I'm a Democrat" -- [that] means something.
CONSTANCE AKRIDGE:
I actually don't have anything to add to what Cam presented about
our CCBA's involvement in the judicial polling process, but I do
have some documents that I'd like to distribute that I think would
be helpful to everyone, not only for the afternoon session, that
are more about judicial appointment versus election. And one is
the poll that Judge Pro mentioned this morning that the ABA did
regarding judicial impartiality, which indicates that people by
and large, a majority of people, prefer to elect judges. They think
selected judges -- 75 percent said -- that elected judges are more
fair and impartial than those that are appointed. And there are
a number of other findings I think you will find interesting.
There's also
a sheet in here regarding where we are in terms of -- where Nevada
is in terms of whether we appoint or elect. We're among seven other
states, I think, or 17 other states, that have the elections --
actually 14 other states. We're within 14 other states. Seven states
have partisan elections, and so forth. This is kind of off my topic,
but I thought it was important to bring this information.
The other thing
I wanted to hand out was an article by [Las Vegas Sun reporter]
John Ralston showing the contributions to judges in this year's
campaign. John Ralston notes in his article that Mark Gibbons raised
$244,000. These are all issues I think that go to the perception
of impartiality and I think it goes to why the Clark County Bar
Association has decided to participate in the poll and do the judicial
evaluation. So I'm going to hand these out.
Improving Judicial Selection: A Legal Scholar's Perspective
Jeffrey W. Stempel
JEFFREY STEMPEL:
Interesting. And [here] is another issue. I mean, what I'm going
to try to do -- and maybe I'm the skunk at the garden party because
certainly I know now that the public likes elected judges -- but
my perspective [is] billed as a legal scholar's perspective, so
I think this is probably the view that most people in law schools
have, that the appointment system, first and all, has certain advantages
over an election system. Well, that's different than saying -- I
think even people who are in favor of appointing judges, judiciary
want it to be in the sunshine. So you ought to have information
accessible, at least to the extent it doesn't endanger lives or
things like that. I wouldn't want to see posted judges home addresses,
their security codes, what kind of car they drive, license plate
numbers, and things like that. But let me just read you, this actually
appeared on election day, it was an Op Ed piece by a columnist named
Steve Chapman, who put it perhaps more pithily than I could, although
I don't know if I feel this extreme about it. . . . He calls electing
judges probably a hyperdemocracy, the part where you elect the dogcatcher,
and I would even apply some of these things to Constitutional officers,
treasurer, auditor, comptroller that you find elected in most states
where they're usually cabinet level appointees at the federal level.
And of course the discussion in his view tends to be a little bit
debased. Not many judges get elected by promising to scrupulously
respect the Constitutional rights of every defendant.
A comment that
was made earlier -- judicial elections just impose a burden on people
charged with crimes as well as a burden on all the people who are
expected to vote in elections. Most of us can't know enough to cast
sensible votes. We might as well be filling these offices by picking
names out of the phone book. Well, maybe that's where we're going.
Americans love democracy. But do we need so much of it? A person
who has two cats is an animal lover. A person with 50 cats is touched
in the head. When it comes to self government, likewise, there's
a difference between healthy impulse and uncontrolled mania. And
perhaps that's a little extreme, but I would argue that we may be
on the verge of that. Maybe this election is an exception because
of the salary, but in particular, [given] the political science
literature, I believe people will back me up on this, when I hear
from my friends in the Political Science Department, you do get
less and less information as you go down the line in offices. Most
of us can even a not very sophisticated voter -- can pretty much
tough out the difference between George W. Bush and Al Gore. May
not have all the nuances of their various positions in all areas,
but there's a lot better understanding of that than typically of
the lower level offices, particularly when you get a cavalry charge
of lower level offices. John's point is well taken. The stuff is
out there, but you have to dig a little bit for it.
I should have
brought with me the various photo guides that the various newspapers
get. When you pull them open, you get about a paragraph on each
judge. And that makes it, you know, from an academic's perspective
-- you think this just isn't enough information. I subject students
to approximately 50 classroom hours studying evidence. I hope they're
preparing at least a couple hours for every hour in class and hope
they're spending 40 or 50 hours cramming for the final and sitting
for the final. They're spending something like 100 to 150 hours
to get three credits of evidence, if they're doing it right, to
understand this sort of issues. How can the average voter really
understand as much about the technical things that a judge does,
ruling on evidentiary questions, ruling on summary judgment, running
the procedural aspects, applying Constitutional doctrine to the
situations, interpreting statutes, reviewing legislative history,
how well the judge picks the law clerk -- are they good law clerks,
or are they bad clerks? You can study some of the things that happen,
overlaying. I do think the Clark County Bar Association survey is
wonderful for that. You can study whether the judge is gracious
and courteous to litigants, whether they're abusive, whether they're
unkind, whether they're in the office. It's pretty tough for lay
people. And I hate to be an elitist from the ivory tower about this,
but it is just darn tough for the lay people who haven't had three
years of legal training, let alone legal experience, to be evaluating
the bench in that regard. And I think that's the problem. I'm going
to suggest that an appointed judiciary is better, both for these
prudential and procedural reasons, and prudential policy reasons.
I'll return to it a minute.
I also want
to argue that it's not inconsistent with our democratic theory.
The democratic theory of course -- and people can make wry comments,
[but] you know, we really don't have a democracy so much as we have
a Constitutional republic. We don't put everything through plebiscite,
right? We elect representatives, we elect executives. The federal
model of course is the most common. And it's one in which by definition
the judiciary was not to be an elected office. But that's true with
so much of what goes on in governing, whether you're a big government
person or a limited government person, liberal or conservative.
The fact is that much of the governing in this country gets done
by people who aren't elected. Cabinet level appointees are a classic
example of the federal government, agency appointees, you know,
the upper echelon ones may need to be confirmed by the senate or
another body, but certainly middle management, upper management.
As one of my old professors used to say, most law in this country
is administrative law, and by and large, most of the people who
make it and enforce it and interpret it are not subject to election.
And of course, let's not forget about the people who hold only mild
official portfolios. I didn't vote for Carl Row, but he certainly
has a lot of say with what goes on in this country, and that's simply
going to be the case. So under that set of circumstances, where
we don't elect everybody, and we don't put every question to the
plebiscite, I don't think it's wholly inconsistent at the state
level, and at the federal level, to say that we can have an appointed
judiciary. And of course, as Judge Pro alluded to, we do have lots
of democratic controls. At the federal level they have to be appointed
by a President who's elected. They have to be confirmed by the Senate,
which is elected. And they can be impeached. It's not a widely used
cudgel, but it can happen. We have the jury system, at least in
the federal and most state systems, for most actions seeking dollar
damages. Most of your average tort and contract and other civil
litigation has a jury, which is by definition a small democracy.
We bring in average people and they're constrained to some degree
to follow the law, they are instructed in the law, but they inject
a certain amount of popular sentiment. We also have quality control
for appeal, and I should put in a plug for an intermediate appellate
court . . . because we worry about accountability and what we want
judges to be accountable for.
You're going
to get more accountability if you can get more in the appellate
review. Even if the results might be the same, if you get a written
opinion, in my view, having clerked for a judge and having seen
how he read the advance sheets and how much he used a judge in the
Eastern District Pennsylvania in Philadelphia -- he worried a lot
about what the Third Circuit said about him. I know Judge Pro pays
attention to what the Ninth Circuit does when it's reviewing his
cases. And if instead -- because of the press of business and because
of a lack of an intermediate appellate court -- the Nevada Supreme
Court is simply affirming or reversing and doing per curium opinions
to a large degree, they're providing less quality control feedback
for the trial court bench. When you do get a reasoned written opinion
critiquing the judge performance -- well, we're going to affirm
because we found a timeless error a judge actually really could
have done a better job on this point in the trial. Trial judges
in my view will take that to heart. And so that's another mechanism
that [works]. And of course we have it at the Supreme Court level
too. If you have another layer of review, you'd have more of that.
And so my view is that we are being consistent with democracy [if
we are] to appoint judges, subject to some safeguards, whether it
would be the federal model or some variant of it.
And of course
there's the Missouri plan which was alluded to. For the benefit
of folks who haven't been hearing this ad nauseam over the years,
the Missouri plan began in approximately 1940 in Missouri and the
system is simply one in which, as Cam well described, judges are
appointed and then subject to a retention election. So it's not
what I would call rock 'em sock 'em elections like we have in town
where you have candidate A and candidate B and probably attack ads
and things like that, as you have in a head to head campaign. It
would be a retention election. Should Judge X stay in office, and
in those circumstances there is quite a bit of popular control.
The real purists who love an appointive system would argue, even
though there might be too much popular control because it's in retention
election states like Tennessee and California where judges have
been perceived as too soft on the death penalty, [that] their opponents
have been able to mount a very good campaign. And again, that's
a campaign whatever your position on the death penalty, that's a
hard one to have a deliberation about in a 30 second campaign spot.
Either you let Willy Horton go on parole or you didn't, but what
was his record before? What were the considerations, what were the
legal issues? All of that is completely glossed over.
So I think
one could argue that at least for issues that are of great saliency
-- shall we call them hot button social issues -- even the Missouri
plan system has significant control and constraints on the judges.
And so part of my thesis is that you really do have plenty of democracy
for judges and you don't need hyperdemocracy for judges. Pubic sentiment
and control over judges can be expressed through their elected representatives
and the executives, and then through the appointment process, through
rewriting of the laws, through the funding of the judiciary. You
know, we don't want to bring up FDR's court packing plan, but it's
always there if the Legislature and the Executive really get angry
with a particular court. They can change it to some degree as well.
But more importantly,
I think, and more salient to this group, might be the public policy
concerns. I've alluded to one of them already -- the expertise factor,
the evaluation of expertise and technicality. Judges are a lot like
administrative officials. They do technical work. We like to think
that we were instructing people for three years in law school, that
this isn't something we could have done in six weeks. There are
some complexities involved in the process, and in order to become
a lawyer and to get the job to become a judge and to evaluate --
that is just going to be hard for even the best informed lay person,
even under the best of circumstances. The appointive process allows
for a little bit more scrutinized vetting of the potential candidates.
If it's done well, and that's another issue.
The independence
we've talked about. Certainly the perception that Cam alluded to
is a terrible one. I think I see Steve Sebelius is in the back.
His column on Jeff Sobel's letter to lawyers looked an awful lot
like, "Up against the wall," you know, "hands up,
give me your pocket book." And that's not a perception that
I think is a healthy one. Even though, as Cam does, I think most
judges really do try to screen that out, but of course, as psychological
theory would suggest, we never quite screen that. Now of course
it's an important distinction [that] has to be made. The lawyers,
while they'll benefit from having a winning record or losing record,
they're not the litigants, right? They're not the ones who will
pay a judgment or receive a judgment; so there's some insulation
even there as well. But nonetheless, at the margin, psychological
theory would tell us, subconsciously, judges know who their friends
and their enemies are in the electoral process. They also know that
from the appointive process. So I don't want to sugar coat it, but
when you have outright funding, that's a rule.
Another thing
is that's of a piece is [that] our recusal in Nevada needs to be
investigated. Jackie Glass alluded to that. Here in Nevada, unlike
the federal system, which abandoned it 25 years ago, we have the
so called "duty to sit" doctrine which, translated into
plain English, means a judge should disqualify himself only when
it's really, really, really, necessary, whereas the federal system
has a little bit lighter standard. Judges should recuse themselves
if their impartiality can be reasonably questioned. I've always
been a fan of the federal standard. In Nevada it's just a hard thing
to recuse yourself. Judge Denton tried to do it in the case that
involved a piece of property where he had received campaign contributions,
not in significant amount, I think, four or five thousand as I recall,
from entities that had some interest in the case. And he said, "Well,
I think I could be fair, but people might worry about it. I'm going
to disqualify myself." Goes up to the State Supreme Court;
they say, "Sorry, Judge Denton, that's admirable on your part,
but try the case, darn it. We have a duty to sit in Nevada. Don't
be a wimp." Okay? You don't disqualify yourself. Well, I think
that's a jurisprudence that should probably change, at least if
you don't change an elective system. And maybe we put some limit
on the amount that people can give on campaigns and what the overall
percentage is. Maybe we should have better disclosure, but that
gets to a point of whether we reform the election because we may
be stuck with it, because the Constitution is so hard to amend.
But it is certainly unseemly. The elections that we had, for example,
in the Sobel-Glass race -- well, I didn't need to see Judge Sobel
in his T shirt. I didn't need to hear that Jackie Glass defends
criminals, at least not the way those things were presented. They
really weren't presented in an erudite, issue warranted way. They
were presented more by way of tarring opponents. And recently the
Brennan Center at NYU has made a real issue of significant studies
of judicial campaigns. They have come up with the report that Judge
Pro alluded to and that finds that in 95 percent of the judicial
races, the person who spent more money on TV wins. Not newspaper,
TV wins. And of course that's not that different than other elections,
but it's higher. It's more like 80-85 percent [that go] to the TV
spender . . . in the Legislative and Executive races. But it's higher
in the judiciary, and I'm sure that's a consequence of the lower
voter information [about] the people who are running for the judges.
And in addition
to that, you think some of the stuff in this town gets nasty, [but
consider] the Brennan Center report, which is available at NYU's
website. It has some wonderful, wonderful, but shocking -- wonderful
in the sense of amusing, shocking in the sense of content -- outtakes
from the Ohio Supreme Court race in which it was really down and
dirty in terms of the things that were being said about the judges
and that at the margin can't help but lower respect for the judiciary
and the role of law. I think [this] is a chronic problem. And let's
not forget the resources that are expended on it. Connie just handed
me the sheet and my quick math suggests we've had at least a couple
million dollars being spent on judicial campaigns. That may be nice
as a pump priming mechanism for political consultants and paid media
outlets. I don't think it's a particularly good expenditure of social
resources. Yes, if we count all the costs, as economists tell us,
we should be counting the costs of an appointive system and the
vetting and the professionalism and professional expertise that's
invested there. But I think that's probably a more economical way
to do it. And in fact every time I drive buy the still unexpurgated
signs from this year's political campaigns, I begin to wonder about
the waste that's at issue, when you have what I call freewheeling
elections campaigns for judges. Under a Missouri plan, you'd certainly
have a lot less of that, you'd have less expenditure of resources,
and at a time when we're wondering about our expenditure for private
and public resources and the efficiency of it -- it just doesn't
seem to me that it's worth the candle.
Notwithstanding
that, I think we're rather lucky in this State where we have the
quality of the bench we do, given that it's a rock 'em, sock 'em,
head on head, everything but partisan system. There are seven states
that actually let people run as Republicans and Democrats for judge.
And I will say this in the defense of the system which relates to
Judge Elect Glass's campaign. It appears that in the electoral system
the avenues for women are more available. Appointed systems tend
to get to be old boy networks, and that's a problem, but I think
it's a problem that can be fixed by making the appointive system
less old boy. Have your nominating commissions, if not require it,
have a strong affirmative action consciousness. They submit a list
of names to the Governor, as under the Missouri plan system, and
the Governor has to pick a name from the short list. That short
list [should] not be all white guys in their 50's, who work for
big law firms. Okay? And that if we just actually put our actions
where our politically correct thoughts are in terms of looking for
the diversity, and let people apply for those positions. Let people
come out of the woodwork and say, "I want to stand for and
request this appointment," and [then] force that committee
to say, "You know, this person isn't that active politically,
they are not power players in town, but they have a great track
record of public service, or a 98 percent win rate as an assist
DA." And I think some of those folks will come through the
system.
I tend to share
Cam's view that someone with Jackie Glass's qualifications would
have been a contender in an appointive system. But it does appear
that at least to some degree the elective system can still open
some doors, and that's an important point that I wouldn't want to
overly minimize. To me it's not enough of a tail-to-wag-the-dog
problem we have with an electoral system and the comparative advantages
of an appointment system.
Let me then
suggest [that] we cannot have Constitutional gridlock. It's hard
to amend the Constitution, we might have interest group gridlock.
Even with the best of intentions, it's probably not lost on the
owners of media outlets that they make money. It's not lost on consultants
that they make money. It's not lost on some law firms that they
may or may not have greater cache with the bench because of their
expertise and ability to raise funds and stand behind you. It may
not be lost on some interest groups that their endorsement carries
weight. So you may have a system where, even if I could convince
everybody to try starting from ground zero, that appointment is
preferred. There are too many entrenched folks and interests in
this town that don't want to make it happen. Particularly when all
you've got to do is defeat a Constitutional amendment. And it's
a lot easier -- we all know this from kids playing sports -- it's
a lot easier to play defense than offence. Okay? And as a result
it may be hard to ever effect a change you need in this state if
I could even convince you that an appointive judiciary is superior.
Let me suggest
this, though. If you read Article Six of the Nevada Constitution,
it simply says that the judges will be elected by the qualified
electors of the State at the general election. And I don't purport
to have done an extensive Constitutional law analysis of this, but
at least the possibility is open to tinker with that system and
not be in an unconstitutional situation so long as you leave in
essence the core of an election for judges in a general election.
So maybe we could do more with screening committees. Maybe we could
do more with official State Bar vetting and endorsements that might
affect the outcome of these. Maybe we could change the terms. Maybe
we could require more reporting. And of course some of this is not
so much capable of legislation, although I applaud the press, particularly
for the joint effort with the Clark County Bar evaluations. Maybe
we need a more sustained focus on these elections so that it gets
the sort of scrutiny that a U.S. Congressional race does, if we're
going to actually allow voters to do it. Maybe we should consider
partisan elections. I don't believe that's at all inconsistent with
the Constitution.
One of the
things I teach is insurance law, which [shows that] the McCarron
Ferguson Act tends to be different in each state, and so actually
more than a lot of folks on law faculties read an awful lot of State
Supreme Court cases. So I've read them, at least on the issues I'm
interested, [in places like] Arkansas, Alabama, Texas, places that
have partisan elective judiciaries, and I think the results are
sort of mixed. You see the court sway on one. I don't think it's
terrible by any means. And one can argue that the voters know more
when people run as a Republican or a Democrat. And you do see some
swings. You see the Texas Supreme Court going from fairly liberal
in the early 90's, to pretty darn conservative in the late 90's.
I don't think you see any fall off in the erudition of the judges.
Whether you like them or don't like them, whether they're from the
left or the right, the quality of the opinions from the partisan
elected courts is really quite good. These are good opinions, they
hang together, they're well supported, even if they're not the position
which I might elect or might gravitate toward in that particular
case. So we should probably be at least open to all those sorts
of things as well as the other structural reforms [like] a more
sensitive view of recusal, and again, more quality control through
increasing appellate review. Those are all options that are open
to us even if we retain the elective system, and it's not at all
unfair to me. I'm not sure, this might be Constitutional sophistry,
but it's not clear to me that the Missouri plan wouldn't be perfectly
consistent with this. It's probably not because elected by the electorate
probably means you need to be put in office the first time by election.
But is a retention election thereafter necessarily unconstitutional
under the Nevada state Constitution? I leave that to more creative
Constitutional snobs than I purport to be. But where we might be
able to make a move somewhat in that direction, if there's a policy
consensus, that's where we have to go.
Now, with that,
since people's blood sugar is probably extremely low at this time,
while we have the panelists here -- I'll be around in the afternoon
should anybody care to chastise me for what I've said. But I'd like
in particular to give everybody one last crack at our speakers down
here before we break for lunch. Let me just add for the panelists
and for those who registered for the lunch -- it's in room 106,
and we are in 101. I'm sorry, Dmitri, I can guide you there. We
can guide you there. And for those of you who haven't registered,
but are interested, it's available at a somewhat more than nominal
charge, but there may be some, there are a few places left. If someone's
interested, come and see me or Dmitri. But I didn't want to just
end abruptly if people still had questions for the panelists. Yes?
AUDIENCE MEMBER:
Could I ask Nancy Downey, what other suggestions as a professional
surveyor, would you make to improve the judicial survey? You mentioned
a point before and then also the rumor that there was a party --
and I understand it was a group of male attorneys -- to make sure
that female Judges got marked lower. What kind of a checks and balances
could you recommend?
NANCY DOWNEY:
One thing I mentioned before was we could do cross tabulation of
the responses by gender. Once that was done, I didn't provide that
to the client. We found that there was no defensible significance
between male responses and female responses on female judges. So
that was one way --
JEFFREY STEMPEL:
It was probably women's attorney party that was trashing all the
male judges.
NANCY DOWNEY:
Now I would have liked to have been invited to that. But I would
come over to report to that effect and spend some more time. And
I would like to do that. I have a final exam due at 1:00, and my
students will be waiting, so I'm sorry.
JEFFREY STEMPEL:
Okay, that's fine. And I think I saw one other hand up. If it's
still there, we'll take one more question. Yes?
AUDIENCE MEMBER:
Are there going to be more handouts available?
NANCY DOWNEY:
I didn't make enough copies, but you can get the information on
the ABA website, which is ABAnet.org.
AUDIENCE MEMBER:
Is there a possibility we can get more?
NANCY DOWNEY:
Sure, if you want to give me your name, I can send you one. Not
a problem.
JEFFREY STEMPEL:
And even though we're running a little bit, we hope fashionably,
late, we're going to try to reconvene at 1:30 for the afternoon
segment of the program. John Curtas will be he has moved from the
first panel to the afternoon panel if you want to hear his account
of running for office, as well as the people that are listed on
the program. Thanks. We'll see you in about 45 minutes or so.
Judicial Elections vs. Judicial Selections
Session 2. 1:30 - 4:00 p.m.
DMITRI SHALIN:
Welcome to the Justice & Democracy Forum Series. This is session
two in the conference on AJudging the Judges: Should We Elect or
Appoint Nevada Judges?" Earlier today, I read a note from Carol
Harter, UNLV President, welcoming conference participants. I want
to extend her warm welcome to the present set of panelists, as well
as to those attending the second session of the forum. . . .
Before Ted
Jelen takes over, I want to reiterate the mission of the Center
for Democratic Culture, which is to promote the ideals of American
pragmatism, particularly the notion that the process of democracy
is as important as its outcome. The first panel's primary focus
was on evaluating judicial performance. The second one centers on
judicial elections. By way of an introduction to this panel's main
theme, I want to mention to you a passage from Deuteronomy which
I spotted a few weeks back while attending services for a Bar Mitzvah.
The passage relates instructions that God gives to judges, and it
reads in Hebrew, "Lo Takhim Punem," which literally means,
"Thou shall not recognize a face." The Torah commentary
explains what it means -- a judge should not show favoritism. All
the past and future dealings with the person for whom the judge
is about to seat a judgment must be rendered irrelevant. Whatever
the consequences, the judge should remain impartial, steadfast,
and fair, for "the judgment is God's."
I do not intend
to breach the wall between church and state, but the issues involved
are very much with us. Can a judge, after securing a campaign contribution
from a businessman or businesswoman, render judgment on a case affecting
the donor without recognizing the donor's face, without showing
favoritism? Doesn’t election process bring judges in a relationship
with contributors that compromise the judicial process? This is
one of the issues this panel is meant to address. Now I turn the
floor over to Professor Ted Jelen, head of the Political Science
Department at UNLV, who will introduce the stellar lineup for our
current panel.
TED JELEN:
Thank you, Dmitri. Our first speaker of course is John Curtas, a
member of the Board of Governors of the State Bar of Nevada and
a candidate for judicial office during the Fall 2002 elections.
Another Report From the Trenches of
Judicial Politics -- and a Call for Reform
John Curtas
JOHN CURTAS:
I was looking at the report, the monetary report that goes around
there, and I noticed I was put in the middle -- middle to high --
category of fund raising among those candidates who lost. I begin
by discussing fund raising because it is so important in the election
process, too important for the good of judicial elections. There
are three different reports candidates must make for disclosure
concerning their fundraising. The last one was filed October 30th,
and then one has to be done in January.
Those reports
are fairly accurate for some judges and some of the participants
in the judicial races. And they are very inaccurate for others because
there's an awful lot of money [that] comes in after those reports
are filed, especially at the very end of the races. Lous Lapim,
editor of Harvard Magazine, has a great quote about politics. He
says, there are two important things in politics -- "Money,
and I forgot what the other one was." A similar aphorism that
is more frequently quoted is from Jesse Unrow, former Speaker of
the House in California, who said money is the "mother's milk" of politics, and nowhere is that more true and nowhere did I get
a better pie in the face about that than I did when I decided to
run for judicial office.
I got in
late, unlike some people. I'm kind of proud of the money I raised
because I only had a few months to do it, and I raised more than
people who started a year before me. Unlike a lot of people, including
Judge Glass, I didn't put an incredible amount of my own money into
the race, which I think is also part of the -- what those figures
misrepresent, not intentionally, but [what they] don't figure into
is the loan that candidates frequently make to their campaigns --
when they see that when it finally hits home that the entire race
of getting elected is entirely about money. And whether you are
elected or not comes down to whether you are willing to raise and
ultimately spend more money than your opponent. Some people decide
to write very large checks as Judge Elect Glass did, to the tune
of 155,000 dollars, to her campaign. That put her in the over 300,000
dollars that she spent on the campaign, which was more than incumbent
judge Jeff Sobel spent, and he raised and spent a lot of money.
Most of us
don't -- didn't -- practice in that rarified air. When you decide
to run for judge, the process goes something like this. You announce
after talking to a few people, everybody's very happy. You get a
lot of nice phone calls, you talk to a few people, you make your
obligatory and very pleasant pilgrimages to the press, talk to the
reporters and the editors and tell them if they'll take your phone
call why you're running and hope you get some favorable publicity
along the way, knowing that you're going to get some from both sides,
and that's just the way the game's played.
Once that post
announcement glow subsides, then the reality hits hope because everybody
then comes to you -- political pros, family friends, other lawyers,
other judges -- and they all have one, and only one, question for
you. "How much money are you going to raise?" Nobody wants
to know how good you are. Nobody wants to know that I've tried more
cases than Justice Becker or that I'm anti death penalty and she's
pro death penalty or anything like that. Nobody asks you those questions.
The people in the know want to know one thing, how much money can
you raise and how much money are you going to spend to get yourself
elected judge.
That simple
equation, as you find out, which is true in 95 percent of the races,
means that money inevitably has perverted and corrupted the system
we operate in. And any time [you] hand a dollar to somebody, you
alter your relationship with that person. Whether you're paying
them to cut your grass or you're buying some shampoo from them,
or you're giving them a dollar to help with their campaign. Everything
changes when money changes hands. And it's folly to think otherwise.
To have that
as the underpinning of every judicial election, and that corruptive
influence being the underpinning of every election, and not recognizing
it is just pretty much, you know, ignoring that giant pink elephant
in the middle of the room. And the people who defend the status
quo, I think, do so generally because as incumbents, or people that
have won, they find that worked in their favor.
I disagree
totally with Jackie Glass -- running for election is not about gladhanding
or endorsements or grass roots campaigning. It's about spending
money for television advertising, and that is all it's about. Jackie
outspent her opponent, she won. Oddly, I mean, Jeff Sobel, who is
a friend of mine, so is Jackie for that matter, Jeff Sobel spent
a huge amount of money, but he ended up getting fewer votes in the
Sobel-Glass race than I did in the Curtas-Mosley contest, which
is a bit scary. But then again, despite whatever bad press I received,
nobody ran a television advertisement showing me in my underwear
(which was in one of the anti-Sobel TV spots run by the Glass campaign),
which would have gotten me even fewer votes.
Everybody comes
to you when you run and say, how much money are you going to raise,
how much money are you going to spend. From there it jumps right
into, "You've got to start dialing for dollars." I think
Las Vegas Review-Journal columnist Steve Sebelius writes about this,
and I got that quote from him. You just sit at home, you get lists
of lawyers, clients, friends, family, acquaintances, and you just
work the phones day in and day out begging. You learn three things
when you run for office: You learn how to beg. You learn how to
lose weight. Ad you learn who your friends really are. And that's
-- those are probably both the good and the bad parts. But it's
all about getting that money in the door, and the money isn't for
anything but television advertising.
So if we're
going to look at why we elect judges, we want to look at the big
picture here. You've got to cross your philosophical threshold.
And that threshold is that we like the fact that we elect judges
based solely upon [the fact that] he or she who has the most television
advertising wins. Because invariably that's what it comes down to.
It comes to and if we're happy with that, which I don't perceive
the public really is, then the status quo should remain. If we're
not, and there are many reasons not to be happy with it because
when it comes down to just who has the fanciest commercials or who
can show their opponent in their underwear, or who can beat somebody
else on the head with an issue, rather than what elected office
should be about, which is qualifications and experience, because
we're not talking partisan elections here. Judges aren't supposed
to be taking partisan positions. It should all be about those things,
instead it's just about spending the cash for political commercials.
If we make
the threshold determination that we don't want, [that] we want it
to be about more than that, that we're looking -- we're setting
our sights higher, both as an electorate and as a judiciary, then
you have to take money out of the equation. So to me, it's not about
-- this is the shocking thing, which a lot of my friends don't agree
with -- everybody expects me to get up -- and I've given this speech
a couple times now -- to be against the election of judges. I'm
not against the election of judges. Simply because my philosophy
is -- you want experience and qualification as a judge. I'm against
inexperience and unqualified people being judges. That's what I'm
against. I'm not against the election process.
It seems in
this state we have two ways of improving judicial competence. We've
got the money leading to fancy television commercials and you get
elected, in which case you get a judiciary, and I know the people
here. I think we have a supremely unqualified judiciary in this
state. Well, maybe not throughout the state, I don't know the whole
state. I know Clark County and I know a lot of judges and I know
all of the candidates, and I think there is a huge number of sitting
judges at every level who have no business being there. And that's
because the people that are there they may want the job worse than
the person they beat, or they may be better at raising money than
the person they beat, but that doesn't mean that they're better
than the person that they beat. So if we all start with the understanding
that we want a qualified judiciary and an experienced judiciary,
you have to figure out a way to get money out of the equation.
One way is
to have judicial appointments. But unfortunately, the way that works
in this state, I think is as corrupt as the corrupting influence
of money. It's so corrupt because what we have is we have supremely
unqualified judges being appointed by our governors based upon who
wants to do a favor. Just because a Governor wants to do somebody
a favor isn't any reason to appoint a judge, a person to such an
important position as a district court or even municipal judge.
As I was driving
here, one of my clients and a businessman in town reminded me that
he uses the judicial system on a regular basis. He's a contractor.
The fellow's name is Duke Phelps, Randall Duke Phelps. He's the
president of Morningside Homes. He builds houses all over the County.
He is both by choice and sometimes just by happenstance in the judicial
system on the basis of mechanics liens, construction defect and
collection actions. So he's a legitimate business person who has
a lot of hands on acquaintance with the courts, and his point was
you can't have something as important as a judicial position where
people are making life changing decisions for the people in front
of them. You cannot have people sitting there in those seats who
did not have the gumption, I think I heard the word, or the wherewithal
you know the person of experience, or the education, or . . . the
personalities to make these life changing experiences, and experiences
that effect people on the deepest emotional and financial levels.
Because of
corruption of our judicial system by money, we have a system that
encourages that. But the appointment process can be just as bad.
Our politicians have been more atrocious than the people that are
getting elected. Another consequence about running for election
is that you develop skin as thick as alligators hide. So you can
just stand up here and take the heat a little more than other people
might. You have to consider reforming the system in a way that eliminates
corruption and accentuates experience and qualifications. And running
-- running a campaign on the basis of cash isn't doing it, and having
governor's backroom deals isn't doing it. So something has to happen
that I think takes maybe the best of both of those systems, giving
it to the electorate to throw people out or put people in, maybe
in a way that money doesn't play such an important role, or shining
the bright light of the press and the public on what happens in
the judicial appointments.
On the whole,
I would run again. I believe in the elective process -- elected
process of judges -- in electing judges, but I think you have to
figure out a way to do it whereby the qualifications and the experience
of the candidates and what separates them from their opponents is
placed before the electorate in an even manner, so educated decisions
can be made. If that can happen, then I think elections are fair.
If we don't have that, we're just going to keep -- if we don't do
that, we're going to keep having people elected -- I think somebody
said a little earlier that the elective system opens the doors for
people who might not otherwise be able get into the system. Well,
I don't know if that's really always a good thing. Just because
you want to be a judge doesn't mean you deserve to be a judge. Just
because you have money or have friends who have money, doesn't mean
that you necessarily have the capacity to make the decisions that
effect people's lives like a judge does.
I'm not calling
for an end to judicial elections, just calling for a system that
is better than the one we have now. I have practiced under the Missouri
plan. I'm also licensed in New York and Connecticut and Kentucky.
Kentucky elects judges just like we do. It's just wide open and
crazy. Connecticut and New York have much [more] dignified systems,
and I will say, having practiced as an experienced lawyer in both
those states, the judiciary in those states is held to much higher
standing and respect by the judges, by the lawyers, and [by] the
public, than it is in this state. So what we have here is a system
that I think is corrupt from within. We've the capacity to change
it, but we have to figure out a way to end these corrupting influences,
and unfortunately, it's going to take some radical thinking by greater
minds than mine to do that.
TED JELEN:
Thank you. Our next speaker is Tom Mitchell from the Las Vegas Review-Journal.
Evaluating and Electing Nevada Judges: A Journalist's Perspective
Thomas Mitchell
THOMAS MITCHELL:
I do a monologue everyday, so I prefer a dialogue where I can get
out and get some people asking questions like they did this morning.
But I would like to ask a few questions [regarding] some of the
topics that I heard this morning, things like . . . civility and
public discourse.
Since when?
Thomas Jefferson and the Founding Fathers never had any civility.
If you read what the press said about them at the time -- they were
vilified. They said things about them, their parentage, and everything
else. Also it seems to me human nature. When you sit around and
you see a problem you want to fix it. Everybody wants everything
to be foolproof. I've got news for you. The fools keep finding better
ways to circumvent the system every day.
What you need
to do is get a system that overall is self correcting. Things are
going to go wrong. That's what my role is in the press and in a
democratic society -- to go out, look, shine a white light. And
over the years I've shined a white light on things that I felt were
serious problems, and the readers and the politicians look at it
and go, "Who cares?"
One of the
things that I keep hearing is an underlying factor in all the discussions
on whether we should elect judges or should appoint judges and whether
or not there's too much money as a corrupting influence, or TV is
an influencing factor, and it all comes down to the bottom line
. . . that the voters are just too gosh darn stupid to figure out
who the best people are. Well, maybe the answer is to educate the
voters better.
Now to get
back to the fundamental civics in high school and college, I should
do a better job. I mean, these are some of the things we need to
think about before we decide to throw out the baby with the bath
water.
Regarding
appointments, anybody who's worked in Louisiana like I have known
that appointment -- the term patronage is not a dirty word. And
as a matter of fact, I think Huey Long's story was that he sat down
with a reporter in a small rural restaurant, and put three glasses
of water on the table. He said here's how politics works in this
state. I take three dollars from glass A, give a dollar to glass
B, a dollar to C, and keep a dollar. I make one enemy, two voters
and a buck.
The way to
get around this is to have an educated public that knows how to
go to the polls. We throw the money that was being thrown out there,
we know what to use it for, and pay attention to what's going on.
TED JELEN:
Next we'll hear Michael Bowers, who is from the University of Las
Vegas, on [whether] elections should be publicly funded.
Should Elections Be Publicly Funded?
Michael Bowers
MICHAEL BOWERS:
The most recent study of this was a 50-state court study by Melinda
Gann-Hall, a political scientist. She studied, between 1980 and
1995, state Supreme Court incumbents [who] were challenged for reelection
44 percent of the time in nonpartisan election states, 61 percent
of the time in partisan election states. Now those figures are actually
somewhat high because they count, you know, anyone who can put in
the filing fee and challenge a judge, whether or not they actually
have any money or actually run a campaign at all. What is more significant
in Hall's findings during the same time frame is that in partisan
states, only 18.8 percent of incumbent judges lost. And in nonpartisan
states such as Nevada only 8.6 percent of sitting judges lost. So
it is fairly rare that they are challenged.
It is even
rarer that they are defeated. For example, if we look at the most
recent election here in Nevada, in Clark County, there were 21 races
for District Court judges. Seventeen of those races featured incumbents.
Out of those 17 races, 13 of 17 incumbents had no challenger. That's
76.5 percent for you statistics fans out there. Three quarters had
no challengers. Only four incumbents had challengers. Of those four
incumbents, only one, Jackie Glass, won. That is [being] so, what
do we find? Incumbents are not challenged, three quarters of incumbents
were not challenged. Of the [one] quarter that was challenged, 75
percent won reelection. So all tolled, then, of the 17 races, 94
percent of the incumbents were reelected.
At the Nevada
Supreme Court level, of course, there were two positions this time
up for reelection, one through a challenger, Chief Justice Maupin,
and in the second race there was no challenger. It was a vacancy.
Oh, Judge Gibbons. That's right. Judge Gibbons. So we had one race
involving an incumbent, and that incumbent won. So again, incumbents
[are] rarely challenged and they are even more rarely defeated.
The third
part of this picture is the lack of voter information and voter
drop off. One reason for the high reelection rates of judges is
that voters tend to have very low levels of information in these
races. And they frequently either choose not to vote at all or they
choose blindly. Now in partisan elections, of course you have a
party cue. You vote for the Democrat, you vote for the Republican,
whatever. In nonpartisan elections such as in Nevada, you simply
don't have that cue to work off of. In studies of nonpartisan elections,
Straffner, Streb, and Wright found that nonpartisan elections not
only reduce participation but also result in better use of incumbents
as a cue in voting for candidates.
Similarly,
both Blunt and McDermott found that in low information elections
such as those for judges, voters cue on candidates names, ascribing
a more liberal stereotype to women and minority candidates than
they do to white males. Voters in these elections then often cast
their votes based upon these stereotypes about the candidates. I
would vote for the woman because she's more liberal. I'll vote for
the minority because he's more liberal. I'll vote for the white
male because he's going to be more conservative, and so on. Not
surprisingly then what we find is that women and minority candidates
in these elections tend to do better among Democrats and liberals
than they do among Republicans and conservatives. Elections for
judicial positions are typically low key affairs, regardless of
their partisan or nonpartisan nature. Part of this of course is
a result of the code of judicial conduct which prohibits statements
that commit or appear to commit the candidate with respect to cases,
controversies or issues that are likely to come before the court.
One of the consequences of a lack of issues is that candidates will,
more frequently than one might hope, resort to negative campaigns
and personal attacks upon their opponents. After all, if you don't
have issues, what do you have? You have personal attacks and negative
campaigns.
In some cases,
including cases here in Nevada, these campaigns have resulted in
complaints before the Judicial Discipline Commission. A second consequence
of these issueless campaigns is that voters tend to have very low
levels of information about the candidates. Ferreting out such information
about the candidates requires very high levels of activity by voters
and many in response simply choose not to vote in judicial elections,
or as I said earlier, to vote blindly. Study by Alan T. Clots, a
political scientist, found a voting roll off rate of from 12 to
25 percent between top of the ballot races and judicial races. That
is those people who vote for president or senator or governor, anywhere
from 12 to 25 percent of them will not vote in judicial races.
Now, okay.
That's bad enough. This is the scary thing -- he also found that
one third of those voters who did vote in judicial races could not
remember the name of even one candidate they had voted for. An analysis
of the 1992 elections in Ohio discovered an average roll off rate
of about 20 percent of that state's judicial races. In Nevada, a
study that I've done earlier shows a rate of anywhere from 10 to
30 percent depending upon the race. Again, if you look at the most
recent races -- if you look at the Nevada Supreme Court race, for
example, this time, you take the people who voted in the Governor's
race, and those people who voted in the Supreme Court races, in
the Maupin race, there was an 11 percent roll off rate. That is,
11 percent of the people who voted for governor did not vote for
that Supreme Court seat. And in the Gibbons's race, without an opponent,
there was a 16 percent roll off rate. Now that's being generous,
because I'm also counting those 75 thousand people who voted for
none of the above. If you counted those people as not voting, and
probably most of those people would not have voted if they didn't
have that option, if you counted those people, then you would have
a much higher drop off rate than the 11 or 16 percent. In the District
Court races, of course, where the candidates are even less known,
the drop off rate will run as high as 30 percent.
Now, of course
the notion of issueless judicial campaigns may change. I suppose
Justice Becker may talk about this in her presentation, as a result
of a couple of Supreme Court rulings. One by the Nevada Supreme
Court and one by the U.S. Supreme Court. The U.S. Supreme Court,
just earlier this year, in Republican Party of Minnesota versus
White, declared a Minnesota regulation unconstitutional. That regulation
prohibited candidates from announcing their views on disputed political
or legal issues, and so presumably, then, if that is to take hold,
judicial candidates will be able to, in the future, announce how
they view these various legal and political issues. And that will
turn these campaigns into something more than the issueless ones
that they have been, not necessarily for the better.
The second
[point] is of course that the Nevada Supreme Court has recently
allowed candidates to divulge their party affiliations, something
which they were not previously allowed to do. So that voters who
are able to ferret out that information would now be able to use
party as a cue. The point I'm tying to make here, however, ultimately
is that elections do not necessarily achieve the goal of accountability
of judges. When you have a system where large number of judges are
initially appointed to the bench by the governor, once they are
there, they are rarely challenged and even more rarely defeated,
and the voters don't know much about the candidates or the races
and choose in large numbers not to vote or to vote blindly, then
it's hard to see how these judicial elections really do hold judges
accountable.
Of course one
of the most serious problems with elections is campaign contributions
and conflict of interest. In those cases where you do have a challenge
to a seat on the court, it's become quite typical for these races
to run into the hundreds of thousands, if not millions, of dollars.
An Ohio Supreme Court race two years ago, for example, cost in excess
of nine million dollars. Ten years ago, in Nevada, the race between
Charles Thompson and Miriam Shearing ran over one million dollars.
That's in a sparsely populated state such as Nevada, that has only
two media markets. In order to run a campaign of course candidates
must gather campaign contributions from, generally, attorneys and
insurance companies, the two groups most likely to appear in court
before them. And of course in Nevada, we can add to that gaming
corporations, who are also very likely to appear before them. This
of course creates the appearance, if not the reality, of a conflict
of interest.
A study by
the Texas Supreme Court, for example, found that [of] 246 attorneys
responding to a survey, 175 of them -- that is, 71 percent -- disagreed
with the statement that, quote, "political campaign contributions
do not affect the judge's decision making." Seventy-one percent
disagreed with that. And in Pennsylvania, a poll by the Pennsylvania
Supreme Court of average lay people, not attorneys, found that nine
out of ten respondents believed that judicial decisions were influenced
by campaign contributions -- the appearance of a conflict of interest,
if not the reality.
Although many
suspect the contributions to judicial candidates affect their decisions,
few studies have been able to show any real link between campaign
contributions and judge's decisions. However, a study of Philadelphia's
municipal and common pleas courts by the Philadelphia Enquirer found
that during one five-year period defense lawyers who had either
worked in on contributed money to judge's campaigns, won 71 percent
of their cases before these judges. In the same courts, an average
of only 35 percent of defendants won their cases. Twice as many,
if . . . a lawyer had worked in or contributed to a judge's campaign.
Is that causality? No, we can show a correlation, but we can not
show causality there. A recent survey by the Texas State Bar Association
said that 30 percent of judges, 30 percent of judges, said they
knew colleagues who assigned counsel because they contributed to
their judicial election campaigns.
In some states
such as Nevada election winners even hold post-election parties
-- I believe John Ralston refers to them as shake downs -- to gather
contributions for campaign debt retirement so that those who had
not previously given will now have a second opportunity to curry
favor with the newly elected judge, further lending credibility
to claims of favoritism toward campaign contributors. An analysis
of the Texas Supreme Court justices' election campaigns between
1994 and 1998 found that justices were four times more likely to
accept an appeal filed by a campaign contributor than they were
to accept an appeal filed by a noncontributor. And furthermore,
the more money a petitioner contributed to the justices, the more
likely that the justices were to accept a given petition. In a recent
study of arbitration law in the Alabama state courts found a strong
correlation between a justice's source of campaign funds and how
that justice votes in arbitration cases. The study concluded that,
quote, "even seemingly bland questions of contract formation,
interpretation and waiver are apparently battle grounds between
the interest groups." Arbitration law in Alabama seems to have
no doctrinal integrity that survives the vicissitudes of the interest
group battle. Even arbitration law can't get away from this battle
between the interest groups.
Now of course
one proposal to resolve the problem of judicial elections is simply
to eliminate them and to adopt something along the lines of the
merit system -- that's not going to happen. That is not going to
happen in Nevada. The voters have turned it down in 1972 and 1988.
It is simply not going to happen. Most voters do not perceive a
problem. In fact most voters seem to support the idea of judicial
election. Secondly, the two major daily newspapers in Las Vegas,
the Review Journal and the Sun, actually agree on one thing, and
that is their opposition to merit selection of judges. And those
are -- both of them operating together -- are quite influential.
And of course there's very little incentive for judges and lawyers
to push for merit selection because it would be seen as self-serving,
serving their own interests, giving them more participation in the
process. And of course that would surely be a reason to vote against
it if the lawyers are for it, and so consequently, then, it's very
unlikely that that's going to happen in Nevada.
So what's
the alternative? Okay, the alternative then may be public financing
of judicial elections. Instead of candidates going out and gathering
their own campaign contributions from private sources that are likely
to appear before them, have public financing of judicial elections.
Now the primary advantage -- really there are a couple of advantages
of public financing -- is that, first of all, the more money that
candidates receive from public sources, the less they will have
to raise from private groups and individuals who are interested
in the outcomes of cases that judges decide. Therefore, public funding
reduces the potential for campaign contributions to influence judicial
behavior and addresses the public perception that such influence
occurs. And the second advantage of public financing is that it
potentially would increase competition for judicial seats. Candidates
who might ordinarily have a hard time raising funds would be allowed
public financing of these campaigns, and therefore, would be more
likely to challenge sitting incumbent judges, and in that sense
make elections really a tool of accountability. At the same time,
there are some practical problems that come about to implement public
financing. Six questions that have to be addressed.
First, which
races should be publicly funded -- State Supreme Court, state district
courts, family courts, municipal courts, justice courts? What courts
are we going to provide public financing for? Should the funding
apply to general and primary elections as well? Second, how much
funding should be provided -- full funding or partial funding? Third,
which candidates should be eligible to receive public funds? Presumably
only, quote, "serious candidates" are going to receive
public funding but who are these serious candidates? Require them
to get certain number of signatures on a petition perhaps, require
them to gather a certain level of seed money from contributors perhaps?
How do we judge who the serious candidates are, who will receive
these monies? Fourth, what conditions should be imposed on the candidates
for funding? Are we going to put limits on contributions they may
accept, perhaps limits on spending? Fifth, how do we deal with excessive
spending by a candidate's opponent who has chosen not to opt into
the public financing system? And sixth, how should revenues to this
fund be generated -- general tax revenues, tax check offs, court
fees, attorney licensing fees? Where's the money going to come from?
Currently only
two states have public financing of judicial elections. They are
Wisconsin and North Carolina. Wisconsin has had public financing
of Supreme Court candidates only, since 1976. They do not fund any
other judicial campaigns, only their Supreme Court races since 1976.
North Carolina just this year passed a law providing for public
financing of appellate court campaigns. That would be the North
Carolina Supreme Court, and the North Carolina Court of Appeals.
Those only beginning in 2004. So currently only one state does,
Wisconsin, but North Carolina will begin in 2004. How have those
two states answered these six questions? Well, let's look.
What races?
Well, Wisconsin says Supreme Court only. North Carolina says Supreme
Court and intermediate appellate court. How much funding? That's
question two. Wisconsin only provides partial funding. Candidates
are allowed to spend up to 215,000 dollars, but the state will give
them only 97,000 dollars of that. So partial funding in Wisconsin
and North Carolina provides full funding. 140,000 for each appellate
court candidate, 200,000 for each Supreme Court candidate. Third
question, what candidates are eligible, which candidates are eligible
-- that is, who are the serious candidates. In Wisconsin a candidate
must raise 11,000 dollars in increments of 100 dollars or less to
prove that he or she is a serious candidate. In North Carolina,
a candidate must race 33,000 from at least 350 contributors, with
a limit of 500 dollars per contribution in order to show that they
are a serious candidate. Fourth question, what conditions are imposed
on candidates? Well, in Wisconsin, you must agree to the 250,000
dollar spending cap. In North Carolina, you must agree to spend
no more than 69,000 dollars in the primary, with any excess contributions
going into the public fund. In the general election, you can spend
no more than 140,000 for appellate court races, 200,000 for Supreme
Court races, plus any funds that you have left over from the 69,000
that you didn't spend in the primary. Candidates who do not opt
into the public financing system are limited to contributions of
1,000 dollars. That's down from the 4,000 dollars previously. Five,
how can excess spending by one's opponent be countered when that
opponent opts out of the public financing system? In Wisconsin,
the recipient of the public funds is released from all spending
and contribution limits, but will continue to receive the public
funds. In North Carolina, they would give what are called rescue
funds up to twice the original amount to those who are facing candidates
who opt out of the public funding system. Six, how should these
revenues be generated? In Wisconsin, they have a one dollar income
tax check off system. So when you do your income taxes, your state
income taxes, you can check the little box and one dollar gets donated
into the fund. Not unlike the Presidential election campaign fund
that you do on your federal taxes. In North Carolina, there is a
three dollar state income tax check off, and also optional contributions
of 50 dollars from attorneys when they renew their annual license.
Of course the
North Carolina system has not started yet. We don't know how [if]
that's going to work. However, the Wisconsin system is in deep doo
doo, as former President Bush would say. The taxpayer participation
in the one dollar check off system has declined from 20 percent
in 1979 to 8.7 percent. Less than one out of 10 state taxpayers
are opting into the system. Thus the fund has not had sufficient
resources to provide candidates with the maximum 97,000 grant to
which they are entitled. In fact, grants have generally averaged
less than half that amount, about 45,000. Consequently, large numbers
of candidates have simply opted out of the program. 45,000 dollars
in a competitive election is not going to get you very far. In the
2000 campaign, there was a combined total of 27,000 dollars available
in the fund for the two Supreme Court candidates to split. That's
13,500 apiece. Hardly worth opting into that system for.
Consequently,
not only do many candidates opt out of this poorly funded system,
it is also the case that Wisconsin's partial funding plan still
does not remove the appearance of a conflict of interest. Even if
judges were to receive the maximum 97,000 dollars allowed by law,
they could raise from private sources another 118,000 dollars from
lawyers, insurance companies, interest groups and others who are
likely to appear in that judge's courtroom. Now North Carolina hopes
to remedy these faults by, first of all, providing for full funding
rather than partial funding in order to remove even the appearance
of a conflict of interest, and secondly, to provide for a duel type
of funding -- attorneys fees and income tax -- in order to pay for
that system.
Will Nevada
be adopting public financing of judicial campaigns? No, it's not
going to happen. The fact is, if I could look into my crystal ball
-- in fact I don't even have a crystal ball, [but]I can tell you
that that's not going to happen. It is not going to happen for a
number of reasons. One reason is that most people, I think, do not
perceive that a problem even exists. And secondly, the fact is that
it's a very expensive proposition. In a state that is going through
difficult budget times, it would be incredibly expensive. Let me
just give you some simple figures. There are currently in Nevada,
right now, 56 District Court judges. That counts Family Court. Fifty
six District Court judges and seven Supreme Court justices. That's
a total of 63 judges. Let us assume that in each one of these 63
races over the course of a six-year period, that you have -- you
have two candidates per seat, and you give only a hundred thousand
dollars. That's low, but let's say a hundred thousand dollars. That
would cost over the course of six year terms of District Court and
Supreme Court justices 12.6 million dollars. That's only at a hundred
thousand dollars, which as we said is very low. Now not every race
is going to have an opponent, obviously, but we can't predict in
advance which once will and which one's won't. Even if you publicly
finance only the 7 Supreme Court justice races, again if you gave
one hundred thousand dollars to each candidate, and there were two
candidates in each race, you're still talking about 1.4 million
dollars. It is unlikely that the state's voters who won't even approve
an intermediate court of appeals because it costs too much, and
who are generally anti-tax and anti-spending, it's very unlikely
that those proposals would ever be accepted in the state.
Furthermore,
you have the problem of how you would fund this. We don't have an
income tax in Nevada, so you couldn't check off a box on your income
tax form. You could pay for it presumably out of court fees, but
a lot of these court fees are already promised to other programs,
committed to other programs, such as domestic abuse programs, and
things like that. Of course the other possibility would be, you
know, attorney license fees. But again, would those generate the
kinds of monies that you would need for a program of that type?
It seems pretty clear that this money would have to come out of
general tax revenues, and that I think alone would doom it to any
sort of passage. So, I have gone on, I took some of Mr. Mitchell's
time, I think, but I will stop there and respond to any questions
after we get through here.
TED JELEN:
Our next speaker is the honorable Nancy Becker from the Nevada State
Supreme Court.
Judicial Elections and the Ethics of Political Campaigning
Nancy Becker
NANCY BECKER:
Thank you. Well, I've been listening to all of the debate today
and none of them are new to me. There's one fundamental question
that has to be asked, and that’s -- what is the role of the
judiciary under our form of government? And we've heard words like
accountability as though an election is a means of accountability
to the general public. We've heard the concepts of the merit selection
and qualifications for upholding the office. But when you look at
when this country was founded and what's made our country unique
in the world, our system of government, it's the whole concept of
an independent third branch, called the Judicial Branch of government
that is supposed to be independent of the Executive Branch, which
are the people who enforce the laws, and the Legislative Branch,
which are the people who create the laws. You cannot be independent
if you're beholden, period. I don't know if you're beholden to a
special interest group. I don't care if you're beholden to people
who contributed to your political campaign. I don't care if you're
trying to cater to the press. I don't care if you're trying to cater
to the attorneys. That just doesn't jibe with the concept of an
independent judiciary and the reason that our founders thought that
an independent judiciary was so important was because they saw the
role of the judiciary as being four things.
One role of
an independent judiciary is its -- our -- duty to prevent, or to
be a check against, abuses of power by the other two branches of
government. Abuse of power really is: are those two branches of
government exceeding their constitutional limitations? Are they
getting into things that the Constitution says they're not allowed
to do, whether that's impeding upon the individual rights of a person.
For example, in an eminent domain case, it's our job to ensure that
before the Government can take your property, they must have a public
purpose, and they must pay just compensation for that property.
The Constitution itself gives the Executive Branch of government
the right to engage in eminent domain, the taking of individual
property for a public purpose. That right is in the Constitution.
Both the state Constitution and the federal Constitution. It isn't
up to the judiciary to suddenly say, hey, we don't like this concept,
we're going to throw it out, because that would be violating our
authorization. So that's one of the primary purposes.
Secondly, we're
supposed to protect the rights of citizens from abuse of power by
a majority. Everyone has certain rights in this country that cannot
be taken away from them just because a bunch of people got together
and voted and said we don't like you. And that's something that
the courts are designed to protect against. We're supposed to provide
a fair and impartial forum for persons to settle civil disputes.
We're not supposed to have judges who are pro plaintiff or pro defense.
And by the way, insurance companies do not contribute a lot of money
to Nevada's elections, it's more proportionately trial lawyers.
Who does contribute? Construction companies, labor, either in money
or in kind contributions. They're the persons that are going out
and pounding those signs up, or distributing leaflets door-to-door.
The gaming industry is a big contributor. Doctors probably more
now than they ever have in the past, but they haven't in the past.
Plaintiff's lawyers. You know, these are the people who are the
big contributors to campaigns.
Judges are
supposed to provide a fair and impartial forum for determining the
guilt of a person accused of committing a crime. The concept of
guilt beyond a reasonable doubt means it shouldn't be easy to convict
people. It shouldn't be a situation of, well, hell, let's give him
a fair trial and then go out and hang him. That's an actual statement,
by the way, from a judge from the Old West. That's not what judges
are supposed to do. But if that's what the people want judges to
be, they can go right on as they have for the last 50 years in making
the judges' races. The issue is election process [as] a political
process. Whether it's the parties trying to stack the federal courts
through the appointment process, whether it's special interest groups
coming in to try and elect or defeat judges who support their particular
point of view, no matter what the facts or the situation, including
the popularity contest. "Hi, I look good on TV."
We have gotten
away from the concept that you want judges both to have the ability
to do the job, the integrity to do the job, and the independence
to do the job. Accountability doesn't mean gee, a majority of the
voters don't like you because you decided that separate and equal
was no longer a valid doctrine. But that's exactly what would have
happened to an elective judge or a judge who had to come up for
reappointment in any state of this United States. If they had to
say, "You know what, separate but equal doesn't work, because
it's never equal, and it never has been, and it's time we stop fooling
ourselves and we start looking at a doctrine that's different."
These issues
are not academic or far removed in time and geography from our own
history in Las Vegas. As anyone who was born and raised in this
town knows, Jews were historically excluded from the establishment
or put on its periphery. It was also a very racist town. I was born
here. People talk about, you know, the big changes in the traffic
and things like that, but that misses the bigger picture. I'm much
more proud of the community now than I was when I was growing up
because of the changes in racial and ethic attitudes in Las Vegas
and the decline of prejudice. I'm proud of similar changes in the
State as a whole. But those changes could not have been made without
the federal judges who weren't subject to the people's will in making
a decision. So there's that balance. When you talk about accountability,
you're not talking about accountability because we don't like your
decision, we're talking about accountability because you don't come
to work on time. Because you can't be fair and impartial. You are
always pro plaintiff, or you are always pro defense, or you're always
pro gaming. That's the kind of accountability I'm talking about.
That looks like you're a person instead of making opinions on the
basis of facts and objectivity and recognizing that life is not
black and white, and no issue ever is.
That's what
I think people want in judging. And you know, you can hear all sorts
of sound bites, pro death penalty, anti death penalty, whatever
someone thinks is the "in" thing -- domestic violence,
DUI, tough on crime. Those are sound bites. They don't tell you
anything about the candidates. They don't tell you anything about
the issues.
In my opinion,
number one goal is to preserve an independent judiciary, and then
you design a selection process whether it's appointed, appointive
retention, or elections, to promote that concept. So let's look
at what it means to be fair and impartial. I've already talked about
the concept that you don't want judges who just think in black and
white. Life isn't like that. There aren't absolutes. And the law
doesn't deal in absolutes. So you're going to have to look as a
judge at a decision and it might be a decision, for example, and
I'll take a controversial issue, you know, gun control. I get asked
that all the time. What's your position on gun control? Well, if
I answer that "yes or no," people are going to infer I'm
in favor or I'm not in favor, they'll infer that it's a commitment,
that if I'm elected and continue to be on the bench, I'm going to
vote one way or another if that issue comes up in front of me. I
never answer questions like that. Because to me that's making a
commitment, a promise, and if I make that kind of promise, I can't
be sitting on the case. I've already prejudged it. You don't want
me on a case that's been prejudged. If you're the litigant, you
certainly don't want that.
I understand
that people want to know about me and how I look at that issue because
it's important to them, it's an important issue. So how I answer
it within the canons of judicial ethics. Because the canons of ethics
-- we've already talked about the recent Supreme Court decision,
that decision talked about announcing your position on issues, and
I think that it's clear that the term "announce" is a
pretty broad term. The Nevada Canons of Judicial Ethics talks about
comment on an issue that may possibly come before the court. Well,
it's not much narrower, and I don't know if that provision could
survive enforceability under the current Supreme Court law. It's
not clear. Because the Supreme Court still left open the issue that
judges shouldn't be making promises or commitments about how they're
going would rule in cases.
To me what
that means is when I'm asked about gun control, I can tell people,
look, the Second Amendment does not say I have a right to own a
gun. That's not the exact language of the Second Amendment. The
Second Amendment talks about that the right to have a militia, which
is a citizen army, should not be impaired. Now that clearly implicates
issues of gun control.
There's no doubt that that's an issue that has to be considered.
What I have to do is I have to look at what the United States Supreme
Court, because they're the ultimate judge of what that means in
the federal Constitution. I have to look at what other federal courts
have said, and I have to look at an individual statute. How far
does the statute go, does it ban the ownership of all guns? Does
it simply say you have to register a firearm? Does it say that certain
types of guns can be banned, and how does that relate to the amendment?
I can't answer that question. I can't tell you this is how I'd rule,
because I don't know. Until those legal issues are presented to
me and fully briefed, how can I tell you? How can I know if I don't
know what the statute says? What I can tell you is that I don't
have a problem with people owning guns.
To me that's
not the issue, the issue is whether or not the Legislature -- because
it's not my personal belief that matters -- I'm not a legislator.
If I want to go out and make those decisions, I should run for governor
or legislature. The issue is can the Legislature do that or is it
overstepping their bounds under the Constitution. What I'm trying
to do is give you an example of how you ethically answer a question
and discuss an issue and you can discuss it in depth without making
a commitment or a promise. You can let people see you as a person,
because the more you talk, the more they'll know about you. That's
better than a sound bite like "I favor gun control" or
"I don't favor gun control." Sound bite judicial campaigning
is bad because when you do it, either you've already made a promise,
or you're lying to get a vote. It's one or the other. And that's
not something that judges should do, and I don't think that [is]
still permitted under the canons of judicial ethics and elections.
We have at
least touched upon partisan elections today. Well, you know, the
whole view of partisan is all of a sudden you're not independent
and impartial anymore. If you're running on a party ticket, you're
running on a party ticket. It's simply inconsistent with the concept
of objectivity. Not to mention that you may be a Democrat or a Republican
in terms of how you registered to vote, but you may not agree with
all of your party's positions on every issue; so it really doesn't
tell you much about a person. It tells you about a party slate.
Who's supposed
to elect the judges, the party, or is it the people? So I don't
think that partisan elections are a good idea. If what you want
is an independent judiciary. Because a party, whether it's Democrat
or Republican, or Independent, takes the position and they want
their judges to rule in favor of those positions. It seems to me
inconsistent with the concept of trying to be independent. You don't
want judges making decisions on the basis of public whim or popularity. "If I rule this way, I'll get re-elected." And as long
as the voters encourage that concept, you will have judges that
think that way, and they will in fact rule that way. And we do in
fact have judges who rule that way throughout the country. So it
seems to me that if you're going to elect judges that the issue
is how do we narrow these influences.
Public funding
of campaigns -- of judicial campaigns -- will only work, one, if
you can effectively deal with the constitutional issues. Wisconsin's
plan has never been subjected to a Constitutional challenge and
whether or not their limitations on spending -- you get the money
if you agree to limit your spending -- will work. [This] is an issue.
Because the United States Supreme Court says you can not constitutionally
limit the amount of money by regulation, by state law that a candidate
spends on a judicial campaign. You can limit the amount they accept
from any individual group, or an individual or a business entity.
You may be able to, and we'll find out in the next few years, regulate
soft money, that is special interest groups buying in on behalf
of the candidate. But there are limits to what you can do in terms
of campaign financing reform under the Constitution.
Whether I agree
or disagree with all of the rules of the United States Supreme Court
on those issues, they're the rulings, they are the law of this land.
So that may be a method if we can fund it, but realistically, if
you can't fund it, it's useless. And it doesn't prohibit the regulation
of outside influences coming in and trying to put judges in who
are conservative or liberal or pro life or pro choice, whatever
division you want to take. And that is one of the things that's
going on in appellate races, Supreme Court races, throughout the
nation -- that people who don't live in the state are bringing huge
chunks of money to get their people elected. You really can't prohibit
that effectively at the moment. It does cost money to get your message
out. I don't even mean a sound bite message. I just mean to have
a website, to have informational sheets printed up about yourself
that tell people who you are, to be able to do the kind of television
or radio advertising, a mass media type of thing. That costs money.
And if I want people to vote for me, I better dang well get out
there and tell them about myself. I shouldn't just sit back and
say, "Hey, you know, I just think you're going to vote for
me because I'm the incumbent." I don't want to make that mistake.
It may happen a lot of times, but it's very foolish thing to do.
One of the
things that the Nevada legislature looked at last session, and may
look at this session as well as an additional method of looking
at this, is to limit the period of time in which judicial elections
can raise money and from that standpoint you have to limit the filings.
Right now, you have from January to May -- there's like a five month
period -- filing doesn't end until May. If you're running for judge,
you know, start raising money in January. You're not going to wait
until May to find out if you've got an opponent. It's just an unwise
thing to do. Now some judges do, and I applaud them for it, but
it's not the smartest thing to do in terms of do you want to be
reelected? One suggested reform is to narrow that amount for of
time for declaring for office to a three week time period in January.
Make sure everybody knows that's what it is. So if you're going
to run for judge make your decision, let's move on. People who aren't
opposed then cannot raise money. They got to wait three weeks. You
don't raise money after that fact, you don't have these big debts.
That's one way of trying to take it out -- and in a contested race,
you have to do as much as you can through the campaign financing
reform.
One of the
things that a candidate should do and that you should look at is
how do they spread out the money. Hopefully you're trying to get
as much money from as many different sources as possible so that
you're not relying too heavily on one source of money. That's not
always possible. Because people don't generally contribute to judicial
races. The average citizen doesn't. They just don't think about
it. But that is one way that you want to spread it out. Try not
to take all your money from a particular source, or half your money.
Try and spread it out as much as possible. Look at the amounts that
you're taking from any given entity. If you're taking a certain
amount of money from a very large business, but it's a small amount
of money in comparison to the size of that business, it's a little
bit different than taking that same large amount of money from a
single individual and then sitting on that individual's case.
The appearance
of impropriety is going to continue any time you accept money. I
understand that. That's just one of the issues. You, as I said,
be wary of people with sound bites. Try and get a candidate to really
talk about the issues. Not to commit to an issue, but discuss it.
What are the legal factors that play into it. What are some of the
things that the United States and Nevada Supreme Court have said
about these issues. If this is an important issue and they can't
discuss that, then you need to say to yourself, you know what, if
this person hasn't been able to take the time as a candidate to
really look into this issue and knows it and can discuss it, then
maybe I don't want them as a judge. If it's not important enough,
then maybe I need to think about it. And do it on more than one
issue. So in terms of the fundraising and those kinds of issues,
those are some of the things that have been talked about.
You try and
raise this much money through general solicitation. That means you
send out a general letter, you don't make personal phone calls.
You try and get other people to do fund raising for you. Nevada
is unusual in this respect. Most of the canons of judicial ethics
say that you must raise money through a committee. Nevada does not.
The reason that Nevada does not is because Nevada is a little more
honest about it because raising money through a committee and pretending
that somehow or other you don't know what money is coming in and
who it's coming from when you've got to find the campaign reporting
forms and when they're public knowledge it's just silly. So what
we say is we encourage you to do it as much through committee as
opposed to personal solicitation. But we don't just create a standard
we know everybody's sort of ignoring out there. Because, why do
it? There's no point in creating standards it becomes a matter that's
ignored.
I've always
had a rule of avoiding large donations from people you've never
heard of. And when you check the court records you suddenly discover
they have a case in your courtroom, or have suddenly filed an appeal
to the Nevada Supreme Court. You just send it back because clearly
it just arrived unsolicited, it wasn't part of a general fund raising
party that you've had, you've never heard of this person and suddenly
you get a check for ten thousand dollars. Now, you know, I think,
any reasonable person kind of knows that "hey, you're trying
to buy my vote." Candidates should exercise at least this level
of scrutiny in receiving contributions. If you don't disqualify
yourself in a case under circumstances where your campaign contributions
are such that you really can say that this person probably has an
appearance of impropriety and should disqualify yourself, than that
can be a violation of a canon. But that's very difficult to prove
because there's no standards.
The National
Center from the State Courts just got done conducting a survey,
and it's dealing with this whole concept of judicial selection,
whether it's appointment, retention and so forth. It focuses primarily
on judicial elections rather than on the appointive process, and
these are some of the things that they're recommending. They do
recommend that elections be conducted in a nonpartisan manner. They
tell you that if you have a state that has a short term of office
-- they don't define what that is, whether that's four years or
six years, but maybe you look at, at the term of office for judges
and you say to yourself, "Well, maybe the term should be a
bit longer if you're going to have elections; so that you don't
have elections as frequently, and therefore they don't have to go
to fund raising issue as frequently." But there's no suggestion
as to what's short. I just received this yesterday, so I'm -- they
give more depth later. But that's one concept.
It has been suggested that people are being appointed to fill vacant
positions and allowed to serve a certain period of time in office
in order to see what kind of a judge they are going to be before
they come up for election. The National Center for State Courts
also stresses that you've got to have educational programs to the
average voter. There's got to be a better mechanism, and it's not
just individually going to voter meetings or conducting a forum
like this, it really means that the bar associations, the government
associations, the media, have to start promoting a concept that
this is what you want to be looking for, these are the questions
that you want to ask. And this is how you want to start getting
judges to discuss the issues. If you want to have a public debate,
don't phrase it for sound bites, phrase it to find out what this
person really knows about this issue and what they know about, how
would they analyze it. Not because you want to get a feel for --
is this person going to rule in favor or against, [but] because
you want to know if this person has any idea about the complex issues
of the law.
You want to
be wary of judicial candidates who just come back with a sound bites: "Every person that commits murder's going to get the death
penalty, every person. Or the death penalty is absolutely immoral." Well, if you've got people who truly believe that, neither one of
those people should be a judge. Neither one. Because they are absolute
situations, they're not in accord with the Constitution, one way
or another. Either you're substituting your personal opinion --
again, that's for the legislature to do, it's not for the judges.
So that's not what you want is debate. You want to be able to discuss
the issues.
Another suggestion
for reform is that non-governmental diverse groups that should monitor
the election process and help out with the local bar associations
and community organizations to start promoting a concept of judicial
elections. What you want to look for in a judge. How you find those
things out? Publishing surveys and questionnaires that are not designed
by a special interest group, but are designed to look at the judge's
knowledge, background, familiarity with the issues. What has that
judge done [for] this the community, that kind of educational process.
Another suggestion
is that campaign contributions and expenditures be disclosed in
timely fashion and be readily accessible. In the final analysis,
it's a matter of educating the public that if you want a judiciary
that's just going to vote in your favor, what happens when you're
not the majority? You either want an independent judiciary or you
want somebody who's going to be like a legislator or a governor
who's going to represent you. If you don't take steps to protect
judicial independence and voter information in an electoral system,
you may not have a true third branch of government. You don't want
a false sense of judicial independent. You don't want judges who
are not impartial or who are under the control of the power mongers
or interest groups.
TED JELEN:
These are the recent candidates for the judiciary, and we will start
with Dianne Steel.
Evaluating the Judges: A District
Court Judge's Perspective
Dianne Steel and Nancy Saitta
DIANNE STEEL:
I have some strong feelings about the Clark County Bar-Review Journal
Survey evaluating judges and how that impacts the community. So
I hope that observations I'm making are understood and taken in
the light which they are given. I heard a previous speaker speaking
before I started to speak, and with regard to elected versus appointed
[judges], I would never have been appointed. I went to law school,
I came to Las Vegas, I didn't know anybody here, nobody would have
ever -- I don't shine out, you know. So I just ran for office and
fortunately, through some wonderful circumstances, I won the election.
During the
first election, I went around to all the attorneys and I said, "What
do you want in a judge?" Tell me how I can serve you as a judge.
I went around to the people. "What do you need in a judge?
How do you judge -- what do you think is a good judge." And
I got back all kinds of answers, you know, we need this, we need
that. But the things that people really focused on was civility:
"I want the attorneys to be civil to each other, and if they're
not being civil, some judge [should be] controlling that circumstance
and sanctioning those attorneys in court for not being civil to
each other." So I wrote that down.
Equality. The
attorneys would come to me and say, "I only want to have an
equal opportunity, if I have an order shortening time or something
I just want to be able to make sure you'll read it and make a righteous
consideration. I wrote that down.
Sanctions.
If attorneys are late getting their orders in -- "You know,
Judge, I got divorced last year but my attorney won't write my order,
and so the judge hasn't signed it yet, and I've been married now
for another six months, and all these things are happening, we can't
sell the house, we can't do all these things; so I want my order
done in time, if it's not done in time, I want you to sanction my
attorney." So I wrote that down.
The Clark County
Bar-Review-Journal Survey produces things like "That judge
is horrible." Now I don't know if any of things played into
it. I don't know. So I took it to heart. I sanctioned the attorneys
for doing the wrong things, for not turning in their orders, and
for not, you know -- but the thing is I treated everybody equally.
They said I want an equal chance, I gave them equal consideration.
I did everything that they told me do. Okay? So they didn't know
me very well, and you know, I really don't have any hard feelings
about some of the comments that they made as far as my abilities
or whatever, because I'd never practiced before. I just became a
judge, almost as a first job after becoming an attorney. So I took
their comments to heart, and I tried to work harder the next time
to obtain a better evaluation in the Survey.
The very first
time that you're running for office and your most recent Survey
evaluation has come out, you run to the newspaper in the morning
and you read every word in that paper and you are you just don't
know what to do. I don't get good reviews. I don't know why. I'm
not going to lay it on any kind of a theory. I'm not going to say
there's a cult against me. I don't make good reviews in the newspaper,
period.
I write these
letters to the editor. I write pages and volumes. I spend days.
Have you ever gotten them? No, never. I just write them. Just to
make myself feel better about why it happened this way. You have
people coming up to you saying, "Don't worry, you're going
to win. And you don't need any money from me because I'm going to
give money to those people who really have real challenges. You're
going to win." I did the silly thing that Justice Becker was
talking about earlier. I waited until I got an opponent, which was
on the very last day of filing, and of course by that time all the
money's gone, including the soft kind. So I won't do that again.
I'm not going
to take long because I've written them down, and so they're pretty
concise. Mostly what I have are questions. I don't have any answers.
I don't know what -- I agree we need to -- people need to know about
us, and they need to know who they're voting on, what kind of personality,
if I'm an honest person, if I'm a biased person. They need to know
these things about me, and I don't know how to get it out there.
I really don't have the answer as to whether or not the judging
the judges poll is a good thing or a bad thing for the public, but
I have a couple of questions. If a judge were to take a secret ballot
during a case and rely on that information to come to the conclusion
that a person was guilty of murder or negligence, or should or should
not have [custody of] their children, the whole town would be outraged.
They'd be throwing that judge off the bench, tomorrow. Isn't that
kind of what's happening to us? We're being judged by our colleagues.
They write a secret ballot on everybody. Somebody totals it up,
and they say trust the secret ballot because it's secret, and give
this judge your nod or not. Where's my right to a fair hearing and
my right to appeal if I don't think that the survey came out right,
if I think maybe somebody was dishonest in their response? Where's
my right to find that out for sure, where's the public's right to
find out for sure?
There are two
things that they grade you on in these polls. The first thing is
your adequacy, whether or not you know the law one way or the other.
And you're going to be surprised to know that 53 out of 58 judges
rated 75 percent or better. That's not bad. We don't have any D's
or F's. We had a couple. But mostly we got C's. But in spite of
that, 58 judges go into that ranking. The Survey currently is more
of a popularity rating than it is a competence or performance rating.
What service is the public getting in this instance when you're
only given popularity rating and that's the one that's been broadcast
out there? How can the same attorneys be so close on some judges
and so far apart on other judges? I mean, you've got the same attorneys
doing the same survey. What, if anything, do we actually know about
the attorney who tendered his opinion about a judge, the people
that are out there judging the judges? Did the attorney rating each
judge have one case or more in front of that judge? Did the attorney
lose his case on an issue of law on which the attorney may have
been wrong, but now he thinks the judge was wrong? How do we know?
Did the attorney lose his -- who determines the legal knowledge
of the attorney who rendered his secret opinion of that judge. Is
that attorney a stellar attorney, he's the brain trust of the attorneys,
or is he just somebody that's just marginally hanging in there?
Has a judge ever been sanctioned or ever sanctioned an attorney
personally for inappropriate conduct in court and now he's judging
that judge? Is that attorney planning to run for office like maybe
mine? Did that attorney lose a previous race against that judge?
These are
questions that lack an answer but for which we deserve an answer.
But the judges don't know. The public doesn't know. The newspaper
doesn't know, even though it is happy to publish the pithy negative
quote. So why is the Clark County Bar Association sanctioning this?
Why do we have a bar association that is supposed to not demean
the judges sanctioning something which in many cases demeans the
bench. Would the Clark County Bar Association sanction a survey
of this nature giving it legitimacy and a presumption of accuracy
if the judges were to be judging the attorneys? They are or they
are not prepared for court. They do or do not have an understanding
of the law. I think that would really impact their income if the
judges were to name names and give ratings along the same framework.
It's just basically
the survey is kind of flawed or it's capable of being flawed, and
I really think the first couple times the survey came out, it was
more legitimate than it is now because people know how to maneuver
it. And that's a shame because I think it could have been a really
good tool, and it probably still is in some respects, but I'm just
really concerned about the way that it's presented. And just to
give you an example, my opponent in my last race -- this is the
from-the-trenches part of it -- used the Review-Journal Survey as
his only reason to run against me. That was his only reason. This
young man had been an attorney for a year and a half, been in Las
Vegas for two years at the time and said, "That poll convinced
me I needed to run against you." He had never been in my courtroom,
he never worked with any of the litigants I've ever been involved
with, didn't know one thing about me, never even said hello to me
before he ran against me, because he based it one hundred percent
on what he read in that poll.
There was no
disclaimer in any of this candidate's material, no noting that the
Survey is not statistically [reliable]. The attorneys that I talk
to say, "Oh, I don't even do that thing. I don't have any problems
with judges." So I don't have that input from the attorneys.
Neither does the public. I don't know the answers. I just know the
problem, and it was very uncomfortable for me when the attorney
wrote the things that he wrote about me, never even knew me but
relied one hundred percent on the polling documents. It made me
very uncomfortable from the trenches. And even though I was the
favorite, even though I won 70 percent to 30 percent, it doesn't
change the fact that some people out there think that the survey
results represent who I am, and that makes me feel sad. Don't know
any other way to say it.
TED JELEN:
Another view from the trenches, Nancy Saitta.
NANCY SAITTA:
I want to make a disclaimer right up front. I am not related to
the Saitta of the car dealership in town. This has actually come
up during the course of campaigning. People either assumed immediately
that I was somehow related to the car dealer. And they assumed a
couple of other things that were involved in that erroneous assumption.
I should also disclaim up front that my first opponent was Judge
Steel. She beat me in the primary. We have long since discussed
this irony and how fortunate we are to both be on the bench today.
Number one, I was going to be well funded because of this assumed
relation. As a result, fund-raising was always difficult.
My first campaign
as well as Dianne's were largely grass roots. It was at the time
that I decided to run as a government employee. I was married to
another government employee, and so I was also at the time raising
four children, three of whom were in college, and so it was rather
difficult, as you might imagine, for me to have any funds whatsoever.
Which leads me to I think, and I'm going to combine my two topics,
I hope, the two topics that I'm discussing, so I hope it's okay,
and as the last judge to speak, I think that might be what you want
to hear, you know. Should we be elected?
I spoke with
one of our county's finest attorneys yesterday on this exact topic.
That attorney is present here today. And I said that whether or
not I felt we should be elected was probably an issue that should
be left to those who decide the process by which they want the judges
to become judges. Not me. But that I compared the process to, I
hope, a well known fable, Emperor's New Clothes. You know, we walk
around and as the fable goes we look at the parade. But as the fable
goes, the Emperor had no clothes on as he paraded through town.
I think that's my recollection of it. But nobody would tell him
that he had no clothes on, because guess what -- he's the Emperor.
Let me tell you something -- as a judge we operate in the very same
place, day after day after day after day. That is troubling to me.
Let me go back
historically and tell you that while I'm proud now to be in a second
term, I was so elected through a contested election. I was appointed
to the lower court in the city by the mayor. And I have now run
unopposed. So I kind of have a little bit of different place to
talk to you from, I hope.
I was appointed
after I lost to Dianne Steel, literally within weeks of my [defeat].
I cannot tell you definitively how that appointment came about.
I have a pretty good idea. But again, that would be my speculation.
And I'm going to tell you something -- I was never brave enough
to go to the people who nominated me because I wasn't sure that
I wanted to know why I had become the lucky recipient of that appointment.
Was it a particularly influential position? No, and that's why when
the first offer, that appointment, came to me, I responded that
I did not want to be on the city court. My background has always
been in the area of abused and neglected children, and I ran for
the family court because of that interest. So when I was appointed
to the city court, I couldn't begin to value what I could bring
to that position and I thought it was better left to someone that
was more qualified than I. I learned, after having tentatively refused
that appointment, it was real stupid to refuse, and I promptly called
back and said, "Thank you very much for this appointment. I
would be glad to accept the appointment. I hope that I can make
you proud of the appointment that you have made, and I can promise
that I will do my very best to learn about what it takes to be a
judge and hopefully apply that knowledge in a way that will make
you proud." As well as, by the way, the rest of the state,
okay, for whom I was then going to be in the service of.
The reason
I didn't ask why I was appointed or why that person made that appointment
was because I didn't want to be beholden, and if there was something
attached to that appointment, I didn't want to know. That's the
truth. To this day, I don't believe that I've ever had that card
called. At least I'm not aware of it. If there was a card there
that was called, I missed it. At any rate, I then ran for an election,
again a contested election, to the bench in the District Court.
And I have never in my entire life, except for raising four of my
children, worked harder in my entire life -- the hardest job I ever
had. It continues to be hard now, five years into it.
We have an
obligation as judges to continue to learn and educate. That requires
us to be in court and continue our education. It requires us not
to be beholden to anyone, and furthermore it requires us to somehow
try to separate ourselves from the ugly, ugly, system we must submit
ourselves to. I take very seriously what I do. I can't think of
too many greater honors than to be able to be a part of the judiciary.
I have to maintain that position by the process that is here in
Nevada. That means you have to be elected. You have to raise money,
you can't get you heard us all say it you can't get your message
out unless there's some way to do it. It costs money. But one of
the things that I think we all need to do and everyone one of you
as voters or as members of the media should hold us to, especially
as attorneys, members of the public is that we should prove ourselves
every single day in court.
Many times,
of course, including today, I do not have a court calendar. Does
that mean I didn't do judicial work? Hardly. I did judicial work
today before coming to this program. I did it last night after I
got home from a dinner that I attended. I will do it again tonight.
Much of a judge's work -- researching, writing, organizing, and
deciding -- takes place outside the public eye. Unfortunately, many
voters do not fully realize this and do not appreciate the long
working hours actually logged by judges at all levels.
I also just
recently set up a brand new court in the 8th Judicial District,
or section of the court, that deals with construction defects. That's
anther part of the judicial role that is often overlooked. Judges
serve the community in many ways in addition to presiding over live
trials. Today, construction defect cases do not pose the harmful
logjam they did for the Eighth District just a year or two ago.
In addition, I used some of my excess campaign funds to attend a
seminar in Atlanta on the issue of mold damage -- a key point of
controversy in many construction defect cases.
Should we be
elected? I believe we should not because of all the frailties that
an election creates. Is there a better system in Nevada right now?
No. I think we need to keep thinking about it and we need to keep
putting it on our agenda. Should we be should we be reviewed and
subjected to the survey that we have in the RJ sponsored by our
bar association? Should we be reviewed? Absolutely. Should your
bar association be behind that review? Absolutely. Should it be
something that we can somehow contain and balance better? Absolutely.
Once, as a
new judge in municipal court, I suggested that we put a box inside
my department, the courtroom, that asked for comments on judicial
conduct. And at the judges meeting where I made that suggestion,
after the loud gasp of air, and people were telling me, "Why
in the world would you want to do that?" I said, "Well,
how else are we going to know what kind of a job we're doing." And again, if you were the educated group of judges sitting around
that table, at least half of them were educated, said you know what?
You really don't want to know. Well, you know what? Yeah, I do.
Now again
I'll go back to that emperor's new clothes. Sometimes it's a dicey
thing for attorneys to do, but I want to know how I'm doing. And
I want to know it every year, or every minute that I sit on the
bench. Finally, let me close by telling you what I do with my judicial
contributions during a campaign year. Justice Becker is absolutely
correct. Do we -- should we suggest to you that we don't know who
contributes? We better know because it's on our contribution form.
But I have a rule that was suggested to me by a former candidate,
many many years ago, when I first started this process, and she
told me, "One thing you never do is take your contribution
directly. You never open a contribution from someone." Okay?
That means you must always have someone with you who can take that.
Okay? Now the obvious. Okay, well, what am I going to do? I mean
after we leave the event, can I go over and say hey, how much did
so and so give me, of course I could. Do I? I'm answering no. I
also have an accountant who does all of my calculations, and he
appears at the bottom of my information [form]. All contributions
are sent to him. If they come into the office, which anyone will
tell you, when people try to bring contributions to chambers, they,
of course, never get past my secretary, under any circumstances.
She takes the envelope and immediately put into a brown envelope,
and it is forwarded to my accountant who then puts it into the mix.
Do I look at
those who contribute to my campaign when I sign my form? Of course.
Of course. Do I look at numbers? Of course. Do you honestly think
that I won't? No. Does it influence me in the courtroom? If I could
remember all the people who gave me a contribution every time I
heard one of their cases, I wouldn't have to work as hard at being
a judge, because I'd have a way better mind than I do. Now on the
other hand, do I know that certain firms typically contribute? Yeah.
Does it influence me? I hope not. Because our job, as I think has
been adequately pointed out, is to take the facts of each unique
case as it appears before us, and then apply the law that is created
either by case law or by our legislators -- apply that law to that
case.
If I'm doing
my job well, whether or not there was a contribution, the amount
of that contribution should not figure into that equation. It's
just that simple. Sadly, I also made a disclosure once about a person
who was a chairperson of my first committee, and I wanted to recuse
from his case: We're not going to be able to -- we're not going
to be able -- I'm not going to be able to hear your cases when I'm
on the bench. And he looked at me as if I had just come from Mars
and said, "What, are you crazy? Of course you're going to continue
to hear my case if you're elected." I came from Detroit where
things were a little different. So the good news is it was my first
election, and so I didn't know what the process was, but yeah.
We also do
bring personal biases to the bench. We need to be able to set them
aside and we need to be able to reach higher -- we have a law here
in the state of Nevada and every other state does of course, federal
law overriding our state law. But you know what, no matter what
my beliefs are about gun control, the death penalty, about abortion,
I better be able to set them aside and apply, once again, the law
of the state in which I'm on the bench. Now if you ask me what my
pinion is -- I'll use the same example, if you ask me about gun
control -- I'm going to tell you what the law in the state of Nevada
is as it relates it gun ownership, as it relates to whether or not
you can carry a gun on your hip. I'm going to tell you that. [If]
you ask me whether or not I believe that somebody should be able
to carry that on their hip, it's not a question that I'm going to
answer. Because, first of all, it doesn't mean anything what I believe.
It means there's a law, I
better be able to enforce it, and I better be able to enforce it
as uniquely applied to the facts and circumstances of the individual
case that comes before me. It's just that simple to me.
Is our system
free of problems? Not by a long shot. You look at some of the stuff
that comes before -- that gets in the public record, you'll note
that there are a number of unopposed judges who have accepted very
large campaign contributions after they knew they were going to
be unopposed from some pretty obvious special interest groups. Everything
you do, most everything in the public domain for you to be looking
at and you should continue to question it, and you should continue
to hold each and every one of us accountable, and you do that by
finding out how we do our job in the courtroom. You find out whether
or not we do work in the community that you think is appropriate
for a judge to be doing and you better be sure that the attorneys
who appear in front of us are able to tell you whether or not we
are learning the law, whether or not we are making the efforts to
become educated because that's how you deal with the system here
in Nevada. We are elected -- it's a good way to put -- to get a
judge on a bench, in my personal opinion, but that's the system
that we have. So we deal with it. Is it the perfect way to do it?
No. Until we have a perfect system, that's the way we will continue
to do it. Thank you.
Improving Judicial Selection Process
Ted Jelen
TED JELEN:
I want to address the concern that has been expressed today about
the relationship between public opinion and the judiciary. Underlying
everything we have discussed today is the relationship between public
opinion and the administration of justice. A number of our speakers
in one way or another have addressed the question of whether the
quality continues to be good enough or manipulated by the survey
in the newspaper, whether it's tainted. Others have wondered whether
the public has the expertise to make these evaluations and to prudently
choose among candidates for judicial office -- right across the
board. Is the public equipped to make the judgments that we ask
them to make when we elect members of the judiciary?
I want to take
a slightly different tack on that and suggest that the independence
of the judiciary -- and I'm going to throw in with those who think
that judges ought to be -- appointed actually has an effect of the
quality of public opinion. Okay, so in other words, for those of
you who have a social scientific bent, I'm looking at the quality
of public opinion as a dependent rather than an independent variable.
In a democracy, that public opinion be informed -- that is the reason
we nominate the judges, and so on? We also require that public opinion
be uncoersed. For example, a couple of months ago there was an interesting
item in the newspaper, Saddam Hussein was re-elected by something
like 99 percent of the "electorate" in Iraq. This is of
course a shock to those of us who study comparative politics. Many
of us would quite legitimately question the authenticity of that
election.
What's the
problem with the "Saddam landslide"? Was the problem that
he didn't have an opponent? Well this gets a little tricky, but
if that's the problem, then I've got a couple of other people who
have the same problem, and I would certainly hesitate to equate
members of our panel with Saddam Hussein. It's a very high compliment
obviously. And also, how hard would it have been for Saddam to dig
up an opponent? But we of course recognize there was something fishy
about that whole process. We don't really regard the 99.6 percent
that Mr. Hussein received as an authentic expression of the will
of the Iraqi people. And I think for very good reason.
But when we
look at that question of authenticity, it's tricky because it's
very easy to point out to, you know, to elections in Iraq, and Iran,
and the old Soviet Union that there is something really wrong and
fundamentally undemocratic about them. But as we know from observations
as early as Alexis De Tocqueville and as recently as Elizabeth Noelle-Newmann,
coercion and authenticity can be subverted in ways that are subtle
as well as direct. There's kind of a reverse Gresham's law of public
opinion, and that's just that popular opinions drive unpopular opinions
out of circulation. In certain ways it's very difficult, even in
a country like the United States, for people to assert opinions
or perspectives that are somehow out of the mainstream. One of the
most important things we can do to preserve the integrity of democracy
understood as the translation of authentic preferences into public
policy, is to try to ensure that the formation of public preferences
be as authentic and as free as possible.
Think about
the stuff in the First Amendment. I had a student ask me last week
why is that stuff jammed into one amendment when all the others
seem so specific? You've got freedom of press, freedom of religion,
freedom of speech. Freedom of assembly, all presumably part of the
same thing. Well, my answer would have been, if I had been thinking
a little bit more quickly -- I'm a charter member of the I wish
I'd said that club but my answer would have been something like
-- but all those four previous freedoms have in common is that they
provide a right of self determination. In other words, they provide
a right for people to participate in the formation of their own
characters.
Imagine this
experience. Suppose you found out after sitting here all day that
there was subliminal recording just too soft to be audible and it
said for "Vote for [United States Senator] Harry Reid" [(D-Nev.)]. Vote Harry Reid. Vote for Harry Reid. This would be
uncoerced and nobody put a gun to your head or anything, but there's
something wrong with that. If something like that happened -- that's
like an unfair manipulation of the opinions of the people in the
room.
What the First
Amendment of the Constitution, most fundamentally guarantees, in
my view, is the right to, or is the capacity to participate in the
formation of one's character. Now, in democracies that gets a little
tricky because popular majorities have a way of enforcing their
preferences into public policy. When we think about things like
what kinds of thing make up a person's character, including marriage,
whether or not to become a parent, what religion to practice --
okay, all have really profound implications to the way we live our
lives. For example, I was raised as a Roman Catholic, and if I were
to make a decision -- I must confess a very nominal affiliation
with Roman policy, I prefer a more intense version of generous --
of southern baptism, for example, this could have amazing implications,
very far reaching implications for my performance in my role as
a teacher, as a husband, as a step-dad, and perhaps even as a citizen.
Similarly, this decision of whether and who to marry is of fundamental
importance. Those of you who are married will attest that being
married constitutes a really drastic perceptual shift; the world
looks different once you're a married person. Similarly, although
I don't have my own children, I think that I can say with a good
deal of confidence that the decision to become a parent causes you
to think about yourself in entirely different ways.
So what does
any of this have to do with the independence of the judiciary? Well,
the fact of the matter is, when we look to public opinion for judicial
selection, especially in light of the Republican Party v. White
decision, which provides for more explicit exposition of candidate
views on policy questions -- one finds ways, whether it's in judicial
elections or other elections, to restrict that right of self determination
for other people.
In case anyone
doesn't know what I'm talking about, at least I referred to the
right of reproductive treatment, but most importantly to Question
Two [the recent referendum seeking to amend the Nevada Constitution
to define marriage exclusively as a union between a man and a woman.].
It is very
threatening to the formation of authentic preferences on which democracy
depends for us to put those sort of self determining situations
to a popular vote. I would like to think, although I don't know
for sure, that an independent judiciary, if we in fact had one,
would prevent this. I would like to think that an independent judiciary,
perhaps the United States Supreme Court, will say, "No you
can't do that." There are certain decisions that are simply
outside the reach of a popular majority. Because when we make those
distinctions, we effectively deny full citizenship to certain facets
of people based on the self defining experiences which we need to
experience.
For that reason,
it is very important [for] those fundamental rights, those rights
which define ourselves versus anyone else, to be placed out of the
reach, as far as possible, from a popular majority. The Declaration
of Independence said it much better than I ever could and, I quote, "We hold these truths to be self evident, that all men are
created equal and are endowed by the creator with certain inalienable
rights." "Inalienable," by the way means you can't
give them up. Okay, to paraphrase, Alexis de Tocqueville, I am not
more predisposed to walk beneath the yoke of tyranny because it
is held to me by the arms of a million men.
Thank you.
We have some time for Q and A. We could certainly-- I don't think
you need me at this point.
DMITRI SHALIN:
Quick question, I appreciate your endurance, and especially our
stenographer's, whose hands must be falling off. Could you last
for another five, ten minutes?
THE REPORTER:
About five more minutes. I have to --
DMITRI SHALIN:
Please, very brief questions.
AUDIENCE MEMBER:
How do you people feel about live TV in the courtroom, particularly
the two judges who are justices?
NANCY BECKER:
There's nothing wrong with having public access to the courtroom
in order to report it as a newsworthy event. It's another thing
to turn the courtroom into an entertainment system, and that is
what has emerged. A trial is not TV. It's not entertainment. And
it's being made to be just that. And the depiction of judges by
Judge Judy and Judge Brown or any of those people you put cameras
for a full trial in the courtroom, and the attorneys -- [they] are
catering to the camera. Sometimes judges will [do that], not every
judge, but some judges will. And the whole concept that this is
a serious proceeding and has guidelines set by the Constitution
gets lost in the entertainment medium. So there is a difference
between cameras in the courtroom and this whole idea of Court TV
as an entertainment. And I'm opposed to the one and I have no problem
with the other.
NANCY SAITTA:
I think that cameras in the courtroom are I work in a family court,
and we are videotaped, everything we do is videotaped. So I'm kind
of on camera all day long during the day. . . . I've got like seating
arrangements -- ten people maybe. But if the public doesn't have
any idea what I do day in and day out, and if there was some kind
of a court channel, it doesn't mean to be collected just towards
the popular cases out there, it needs to be on regularly for every
case that I happen to be on. You understood what I mean? I do juvenile
court. And right now those cases are closed cases. They're open
for the hearing, but they are closed afterwards. So if the public
isn't sitting in my courtroom, they don't know what's going on with
those juveniles, or how I make decisions. So I think in a way it
could be beneficial, but it has to be done in a way that it's not
entertainment, where it's sort of a mundane, and everybody's used
to it being there all the time. And then the public does get an
idea of what's going on in our courtroom by just tuning in and they
don't get the ups and downs of the day to day.
DIANNE STEEL:
I will only briefly echo. I believe in absolutely complete access
to the courtroom by all people. If that means that you do that by
coming into my courtroom, so be it. If you do that by bringing a
camera into my courtroom, so be it. But I am equally opposed to
the spectacle of courtroom proceedings. And I agree that they should
be public education. They should be a common -- I think we should
have cameras in our courtroom, and should have the opportunity to
do so, but it should not be a Hollywood approach to cases. There's
a whole bunch of murder cases that take place in our courtrooms
everyday that are equally as important to the people who are involved
and to the community at large as the two [cases] that you have recently
seen publicized here in our valley. Which is not to minimize the
fact that they were carried, just let's do it equally. That's all.
But absolute access, yes.
DMITRI SHALIN:
If I may, excuse my interruption, I have a question for Tom Mitchell.
You said that as a journalist you see your role as someone who is
spotlighting problems, presenting issues to the public, and letting
the public decide on its own what's right, what's wrong, exposing
vested interests of all the parties involved. That may create an
impression that the media is without a vested interest [of its own],
which probably is not the case. It is part of the capitalist system,
of the economy, and it has a certain vested interest maybe in scandal,
maybe in negative reporting, and some advertisers, as you know,
may get fairer treatment than others.
THOMAS MITCHELL:
We try not to, but that happens. But as far as whether the camera
in the courtroom is entertainment or news, I mean, that's in the
eye of the beholder. And I don't think that content of the First
Amendment speech is necessarily something that's easy to distinguish.
Hard news may be very entertaining to somebody, and entertainment
may be hard news to somebody else. It is difficult to say. I think
the role of the press is to try to keep the public informed. I much
-- I agree with everybody else who criticizes the voters who go
to the polls and don't have the foggiest notion what they're doing
when they get in there. I think we need to work harder, I think
we need to make it clearer to people when they get in the polls,
if you only want to vote on question two, just vote on question
two and leave everything else alone. If you're ignorant on the subject,
then don't vote on it. Don't pick, don't just pick and choose by, "Oh, I saw a sign with that person's name on it." But
it does [happen]. But I also disagree, as I said this morning, [that]
the multiplicity of the message isn't always the most persuasive.
Just because you have your face on television 364 days a year, 24
hours a day, doesn't make you the person that's likely going to
be elected. Sometimes it is the content of your message that in
the final say is what is persuasive. That's, we don't have full
faith in the voters to do the correct thing every time, but the
system is going work over a long period of time. Who said, "Democracy
is the worst possible governance system in the world except for
every other one"?
TED JELEN:
Churchill.
THOMAS MITCHELL:
Churchill, thank you. You know, the public slips and falls along
the way, they make mistakes. They elect people who -- in Texas,
they elect a Supreme Court justice because his name is very similar
to a famous person. So in order for them to try to get someone else
in office who was better, they picked a guy out of Denton County
to run against him by the name of Sam Houston, as a write in candidate.
That failed, because not many people write in. That's the sort of
thing that happens in democracy. Those are the flaws, but you shouldn't
throw out the whole system just because every now and then something
goes wrong.
DMITRI SHALIN:
Last question, maybe two, and then we'll close the meeting.
AUDIENCE MEMBER:
A few weeks ago, the ACLU filed [a lawsuit?] regarding complainant's
right to speak regarding judicial propriety. As it stands right
now [INAUDIBLE]
NANCY BECKER:
That was actually incorrect.
AUDIENCE MEMBER:
Please help me understand --
NANCY BECKER:
That is not what it [court order] says. What it says is that the
initial complaint, the fact that you filed a complaint is confidential.
You are free to go to the press and make that same complaint to
them. You're just not allowed to infer that the filed complaint
[is being] investigated, quote unquote -- because that's an inference
that your complaint is valid and judicial discipline is already
found it to be that. That's what is prohibited. You can talk about
it all you [want]. You can go to the press and say this judge is
unethical and they violated this particular part of the canons.
You just can't say I filed a complaint and it's being investigated.
After the complaint has been investigated and they have denied the
complaint, it is true that you're not allowed to say that the complaint
was denied. The reason for that is, I can tell you, that people
frequently lose in court, and they file frivolous complaints because
they are mad.
AUDIENCE MEMBER:
What about if the complaint is filed and found to be valid?
NANCY BECKER:
Then it's a public matter.
AUDIENCE MEMBER:
What if you're still given notice by the JDC that you are not allowed
to speak of it?
NANCY BECKER:
No, once it becomes a public matter, you have an absolute right
to reveal that you filed a complaint and that the complaint has
been sustained for -- to a certain extent. It's now going to a full
hearing process. And you're absolutely free to discuss that.
AUDIENCE
MEMBER: What about secret apology letters?
NANCY BECKER:
You can't have a "secret apology letter," quote unquote.
The canons currently allow them to resolve a complaint at less than
a public hearing stage, and the question and that is a question
-- is that an appropriate thing to do? If you find there is a violation,
[if] that violation can't be resolved in a manner that's nonpublic,
and there's a dispute about that -- but I can't comment on [that],
because obviously that may come before us as well as before the
federal court. But that's, that's the issue. So the issue is very
much how do you protect a judge from being inundated from frivolous
complaints by people who just lost. Because once that's in the newspaper,
people don't the idea that a complaint wasn't sustained or wasn't
dismissed, that's not what they remember. "Oh, I remember seeing
that judge. The newspaper said they had a complaint against him." So that's the balancing act. And the federal [court] will have to
decide -- is that a limitation under the First Amendment, is there
a compelling interest for it, and is it sustainable. Previously
the appellate courts -- the federal appellate courts always sustained
that kind of things. Whether or not that will still occur in the
future, I can't tell you. The Supreme Court itself has never taken
it up.
DMITRI SHALIN:
Last question.
AUDIENCE MEMBER:
Coming back to the issue of handling the selection of judges, I've
been a trial attorney for 27 years, and I can tell you that the
method by which judges are selected has a direct relationship with
how justice is administrated. And I wish all of our judges had the
integrity of those that have appeared here today. But I tell you,
we funnel thousands and thousands of dollars to judges and then
we say, "Oh, by the way, don't ever let this influence your
decision." I mean, anyone of you asked yourself if I came up
and handed you a thousand dollars or five thousand dollars or ten
thousand dollars, three years from now, would you remember me? Well,
I think you probably would, and the fact is that this does influence
judges' decisions. We have a secretary in our office who looked
at an original file in Reno, and in the judge's notes right there,
the names of the plaintiff's attorney and the defendant's attorney
with the dollar amount next to them as to the campaign contributions.
Okay? Judges are a lot different than condition dates for other
offices. Okay? As Justice Becker said, what we want them to do is
to remain independent. So we give them all this money so that they'll
be independent and we ask them campaign, get on TV, get on bill
boards -- well what was it they're supposed to say? "I'm more
independent than my opponent?"
We've been
doing this more years and we've worked ourselves into this corner
now and so we're discussing, well, how we are going to get all money
for campaigns? Should it come out of taxes, or because we don't
want people influencing the judge's decision we say, well, what
should the judges say who are running for election because we want
them to be independent -- well it's all because we're stuck in this
corner of general elections for judges and it just is not the right
system. I mean, as attorneys alone our arms are twisted all the
time. I mean, unlike the judges that are here, I had one occasion
where a judge was running for reelection, she called me and she
[asked], "Would you be on my reelection committee?" What
am I supposed to say? I say, "Sure." Then the next line
is well everybody in the reelection committee is donating a thousand
dollars to my campaign, can I come by and pickup the check tomorrow?
What do I say to that? "Sure." She didn't send somebody
else, she came by and got it. Okay? The same thing is happening
with businesses and special interest groups and the only reason
that, say, hotels, for example, give ten thousand dollars campaign
contributions to both judges running for a seat is because they
want favoritism when they go into court. That's the whole reason
that they're doing that. There's no other reason for the Hilton
Hotel to give ten thousand dollars to both candidates.
THOMAS MITCHELL:
That's the Shelly Berkley memo.
DMITRI SHALIN:
On that note, I think we need to end. Thank you so much for being
patient and coming here. Stay tuned for our next set of panels.
Thank you.
END OF PUBLIC
FORUM