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 complexit