Paper misses real story behind Supreme Court contest

Last week, this space mused whether the reason Republican Appellate Court Judge Jeff Hughes outpaced Republican rivals in the contest for the Fifth District seat to the Louisiana Supreme Court was because he dared express support for issue preferences. Apparently, this caught the eye of the Baton Rouge Advocate which proceeded to run a story that implied something must not be right with this, even as it uncritically accepted his runoff opponent Democrat Appellate Court Judge John Michael Guidry’s explanation for his success.

The piece reviewed the content of Hughes television ads and statements and said they “contrasted” with Louisiana’s Code of Judicial Conduct, which in Canon 7A(10) states that a judge or judicial candidate shall not “make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending in any Louisiana state court.” But, as Hughes pointed out, in saying he supports gun rights, the traditional definition of marriage, and capital punishment merely echoes existing Louisiana statutory and constitutional law, and if these were to change he would follow whatever changes occurred in his adjudication.

Further, during his campaign Hughes never addressed any specific pending matters, making the application of the canon in question moot in this case. Finally, as Hughes also mentioned (and one would hope as a sitting judge he knew of this), the U.S. Supreme Court in Republican Party of Minn. v. White (2002) ruled that judicial candidates had a right to express opinions on issues of the day, as expression does not imply a judge would not apply the law even-handedly, that the state cannot presume that judges do not have predispositions about issues that may come before a court, and nor do those expressions if made create any kind of promissory situation that would bias case decision-making.

By genuine contrast, Guidry seemed a little confused on this issue. He said he wouldn’t make such statements because he didn’t want the potential to have to disqualify himself from some controversial case in the future. But the Court’s ruling is clear on this: expression does not connote lack of impartiality, and Canon 3C of Louisiana’s Code states that recusal in a case should occur only when “impartiality might reasonably be questioned.”

Guidry also certainly has little understanding of the electoral factors of why he led Hughes and the rest of the field. The Advocate also publicized that Hughes spent about three times what Guidry did, and other candidates spent even more and failed to make the runoff, yet the author gave the impression that Guidry’s frontrunner performance therefore was some kind of mystery. And Guidry added to the supernatural air to the question when he answered as his explanation for his success being “God’s grace” and credited the Deity with the resources to get his voters to the polls.

Whether the Deity involves Himself in these piddling human affairs remains questionable. Certainly the roughly 60 percent of frequent attendees of religious services who voted against Pres. Barack Obama recently, unless we are willing to argue that more attendance means less affinity with the Deity, see no evidence that God inserts himself into elections. Much more convincing is a humanistic explanation that relies more upon the prejudices and foibles of human beings than with any divine intervention.

Guidry is black, the only candidate like that in the race. Guidry is a Democrat, a partisanship shared with only one other candidate in the contest. In East Baton Rouge Parish, in precincts where more than 90 percent of registrants were black – where overall partisan registration was no less than 70 percent Democrat in any – Guidry got an average of 75 percent of the vote and the Republicans together averaged less than 10 percent. Slightly under half of the district is composed of registered Democrats, and about a third is black. Far more likely than the Deity’s touch is Guidry led because blacks almost always vote for a black candidate, especially when they themselves are Democrats.

That the same statistics show Guidry did not get a lot of white votes and the Republican candidates as a whole took in over half of it does not mean that God will have forsaken him when he loses the runoff Dec. 8. It just means that voters will have preferred Hughes, perhaps in part because of his issue preferences even if they don’t have anything to do with his impartiality on the bench.

This is the real story here – that Hughes took a chance of alienating voters by stating preferences, running against the cultural norm that judicial campaigns are issueless and should focus on some vague conceptualization of competence, yet now is the heavy favorite to win precisely as a consequence that Guidry’s favorable outcome is explainable by black solidarity in voting. The exact story, in fact, that the Advocate missed by its hypercritical look into Hughes’ campaigning and its uncritical analysis of voting patterns for Guidry.