Monday, May 5, 2008

I Get Highly Partisan - "Down on Brown!"

If you're a Democrat, don't vote for Marion County Superior Court Judge candidate Kim Brown.

I say this knowing she'll be elected anyway, and since judges decide who serves as commissioners in Marion County, I'm probably ending any chance I'll ever have to serve in such a role. But this is a matter of principle.

Brown is running "against the slate," which means she was not selected at the Democratic Party's slating convention by the people who work for the party. (My comments about slating will be in a separate post, so hold on to your "slate hate" for later).

I say Brown will win because she's at the alphabetical top of a nine-slot judge ballot that lets you vote for eight, and studies have shown that being placed first on the ballot gets you a 2% bump, all other things being equal. In addition, Kim Brown is a sure winner in what I call "name combat," which I explain below.

For all the people who say, "If the voters select her, she DESERVED to win," read on.

Let's be honest. How many people, except for party officials, lawyers, and a handful of litigants know anything about the judicial candidates? At best, ten percent of all primary voters (and that would only be true in a low turnout year).

This means that most voters will either (a) not vote for the judicial candidates and let those who are "more informed" handle it; or (b) voters will engage in name combat.

You may say, "It's all option A, Chris. Nobody votes on a race where they don't know the people." Of course, you'd only say that if you like being mocked for being so incredibly wrong.

Here's my proof. How many people in Indiana have EVER read a Supreme Court opinion to figure out which Justices voted a particular way on a controversial issue? Maybe 20,000 if we're being extremely charitable (and we are given that half the lawyers who practice probably don't even read them). Yet here are the 2006 votes on whether Indiana Supreme Court Justice Frank Sullivan, Jr. should be retained:

Yes - 836,202
No - 379,486

I'm supposed to believe 1.2 million Hoosiers know anything about Frank Sullivan's judicial philosophy!??! He's a great justice; don't get me wrong. But the yes votes are mostly people who have cousins they like named Frank or who dine at Sullivan's downtown, and the no's are either hardcore Republican operatives who hated him as Evan Bayh's budget director or curmudgeons who always want to "throw the rascals out," even when they don't really know what the rascals did.

Here's how "name combat" works. First, if there are no partisan markers because everybody is in the same party or the office is non-partisan (i.e., school board elections), a voter looks at the names and tries to discern demographic cues. If a typical woman name is competing against a typical man name, you'll get "gender preference" votes. For me, this is always a vote for the woman. I'm not sure why, but I have a deep-seated belief that a woman will mess up less. Others use names to guess at ethnicity. Even if a Jewish voter doesn't know me, it's a safe bet I'm more likely to get his or her vote if my name is Leibovitz than if it is Hoolihan, which will kill with Irish-Catholics. When no ethnicity is detected, the vote comes down to association with the name or if people "like" the name. An unknown male candidate with the name "Crooks" will lose to an unknown male named "Justice" in every single election, I promise you.

"Kim Brown" is as American and likeable as it gets, so to the unaware voters, she's going to be the Bruce Lee of name combat.

"So Kim Brown is going to win. What's the big deal?" you ask.

Because she's not running against one person. She's not even running just against Jim Osborn and Garland Graves, the two new guys who got slated but who've never served as judge before. She's running against EVERYBODY simultaneously, including six incumbent judges, all of whom were rated higher than she was by the Indianapolis Bar Association membership. If she gets in the top 8, somebody else goes.

My hope is that Judge David Shaheed's exceptional work has touched enough people that he will be okay. But if "Brown" knocks out "Shaheed," I promise I will mobilize a force like Kim Brown has never seen to ensure she doesn't serve a second term. Same if she somehow knocks out David Dreyer. I don't know the work of Judge Gerald Zore as intimately, but I hear good things, and I'd be steamed about his defeat as well since he's the chief judge. Can you imagine how embarrassing it would be for the party to lose your chief judge??! That's the fear Kim Brown has caused. She even drove Judge Dreyer to run commercials on cable.

People will say, "Yeah, but if she wins, it's the will of the voters." That presupposed that voters know enough to express their will. Such a claim might be true when you're talking about a Congressional race. When Woody Myers stiffed the D's and didn't participate in slating, we knew he'd still not slide through because the race would be well-financed and information - both pro and con - would get out to voters who can make a somewhat informed choice.

That doesn't happen in downticket races like judge. So if you tell me Kim Brown is just the will of the people, I'll tell you she's just the will of the alphabet.

Anybody know any lawyers named Abbott interested in being a Democrat judge? I might be interested in running that campaign.



Anonymous said...

If anybody needs further proof of your theory then I offer up none other than Bobby (Hidalgo) Kern. Convicted felon Kern, whose real name was Hidalgo, beat an imminently more qualified candidate with an ethnic sounding name for the right to take on Dan Burton a few years back. Will of the people indeed.

And if I was Judge Zore I would be concerned that I might be facing a replay of what happened several years ago when he was defeated in a primary (Z is the last letter in the alphabet, after all). The only thing that saved him then was when one of the winners, Ann Delaney, dropped off the judicial ballot to run for Lt. Governor and the local party put Judge Zore back on the ballot for the fall election.

Local Lawyer

Anonymous said...

Precinct Comm here as well as practicing atty.

I would buy your argument if I didn't have to sit through a few things in the last few years.

1. Treacy going back to "count the votes" when his wife, who is generally regarded as the most unqualified judge in the CCB, was on the ballot. Glory be, she managed to squeak through.

2. Your assumption that the PC's read the judicial survey results as well. They don't, and they don't line up on the slate according to the rankings. It is not about how qualified you are for the position, it is about how well you grease the party engine, and how "racially diverse" the party needs to make the slate that year.

3. The move by the party to come up with the new system of allowing the incumbent judges to be safe during slating. If we are in the best position to know, why can't I vote on the continued performance of the judge?

4. The move by both parties to make the primary the last stop for voters to actually have a choice. Used to be, the lowest vote getter got bumped off of the ballot in the general, which was the only way we could get rid of judges like Z. Mae "what you mean you can't throw pleadings in the trash" Jiminson.

When these wrongs are fixed, then you are can complain about people running against the slate. Until then, I can't begrudge canidates for trying.

Chris Worden said...

Local Lawyer 6:06, I was absolutely thinking about Kern as a case study, but I was "saving the powder" for anybody who thought my theory was crazy.

Anon 7:51, taking your points in order:

- The number of precinct committeepeople who have told me the R-P Treacy story is so disturbing, it boggles the mind. It's really sad. You have a guy who is a brilliant tactician, Ed Treacy, yet he misses that having the chair push his own wife (let alone actually preside over the voting involving her) wouldn't smell right.

I'm waiting to see the first man/woman who steps up and runs against Judge Treacy head-to-head. I want to shake that person's hand because they have crazy integrity and either cajones or ovaries of steel.

I agree that the new system is nuts, and I am committed to helping change it. I also agree that all the precinct folks don't vote on qualifications. BUT, for good or ill, at least they have SOME knowledge of the judges. It might only be something like, "He's the one that always brings doughnuts, and he seems smart enough when he speaks at our township meetings," but that's better than the information most voters have.

Ultimately, I think the best system will be judges by appointment following a committee vetting process, just like we do with appellate court judges. BUT I would require re-appointments based on nominating committee review of the work, in addition to the retention vote.

Anonymous said...

Well if that suit regarding judges respnding to polls goes through we will have nothing in Indiana but judges who want to through away the key on criminals and who are opposed to abortion, free speech (insert important right here).

From the Indiana Lawyer Daily:

For the time being, Hoosier judicial candidates can't be sanctioned for answering a questionnaire about their views because of a federal judge's decision today.

U.S. District Judge Theresa L. Springmann in Fort Wayne issued a preliminary injunction earlier this afternoon, stopping Indiana from enforcing rules that prohibit judicial candidates from responding to surveys on their views.

The 36-page order came in Torrey Bauer et. al. v. Randall T. Shepard et al., No. 3:08-CV-196-TLS. The non-profit Indiana Right to Life Committee filed the suit April 18 on behalf of Bauer, a candidate for Kosciusko Superior Court, and Marion Superior Judge David Certo, who is running for the court for the first time after being appointed by the governor to fill a vacancy last year. The judicial speech case stems from a survey the organization sent out in March requesting candidates state their views on policies and court decisions related to abortion, euthanasia, and other issues prior to the primary election.