176. Highly ethical pigs in a poke

Sunday's New York Times looked at campaign contributions to Ohio's Supreme Court justices.  No surprise, the votes follow the money, and the sleaziest judge on the bench is Terrence O'Donnell, who in his first three years on the bench voted for his contributors 91 percent of the time.  Two things tell you all you need to know about Justice O'Donnell.  First:

In 2000, business groups mounted a multimillion-dollar campaign to unseat Justice Alice Robie Resnick, a Democrat who wrote [a decision business groups didn't like] and joined [a] second. One advertisement showed a female judge switching her vote after someone dropped a bag of money on her desk.

Her opponent was Judge O’Donnell. He refused to denounce the attack advertisements, which seemed to backfire with voters.

And the other thing: in the wake of massive public rejection, O'Donnell was appointed to the supreme court by Governor Bob Taft, the living embodiment of Marx's dictum that history repeats itself as a farce.  Ohioans had good luck with their first two major Tafts (there are several thousand minor Taft politicians crawling around the state, too), but they pushed their luck a generation too far.   Anyone appointed by the current proof of genetic regression to the mean should be presumed mediocre until proven otherwise.

O'Donnell defended himself in a written statement: "Any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary."

As for the contention that it erodes public confidence in the judiciary -  Well, duh.  But as for the idea that it might be misleading: How?  Truthful reporting about a state supreme court is misleading in exactly the same way in which truthful evidence can be "misused" by a jury.  (See post 115.)  Judges deplore the tendency of non-lawyers to reach their own conclusions.

The Times's reporters also dug up a hilarious illustration of the way money addles judicial brains, producing a studied absurdity that would be difficult even for Fielding to parody:

 Unlike campaign contributions, direct gifts to judges, even relatively small ones, almost always require disqualification.

In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge for accepting football tickets from Stuart Banks, a lawyer who had appeared before the judge. Yet three of the justices who issued the reprimand had accepted at least $1,000 each in contributions from Mr. Banks in the previous 10 years. Those same justices also sat on several cases in which Mr. Banks appeared before them.

Contrary to the bitter comments of a plaintiff out-shouted by money in Columbus, I don't think most campaign contributions to judges are bribes, or even have the effect of bribes.  I think the effect is both more subtle and more significant.  The Times piece gets close with this passage:

Precisely what contributors want or get for their money is unclear. Some contributors say they have no agenda beyond ensuring that able and independent judges are elected. Others surely hope to influence the justices’ votes in particular cases.

The middle ground, advanced by groups representing business, labor and plaintiffs’ lawyers, is to support justices who hold views similar to their own. “Various interests see voting patterns,” Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy.

If that is right, contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court.

What the reporters are almost but not quite saying is that big contributors know how the candidates will decide cases well before those cases actually reach the court.  Contributors don't shell out the bongo bucks unless they know what they're getting.  (And it ain't philosophy, bub.)

Ordinary voters, however, aren't privy to that knowledge.  It's considered unethical in the extreme for a judge to inform voters what they might expect from the judge's election.   Judges pride themselves on being pigs in a poke.  (See post 7.)  Their highest ethical standard is to ensure that only those with money to exchange for the information will know in advance how they plan to vote, once they encase themselves in the magical black robe.