Recent race cautions about raising judicial salaries

This week, the Louisiana Legislature will continue its look at raising judicial salaries again with state Sen. Danny Martiny's SB 188. While the debate mostly may turn on cost/benefit calculations such as whether the state can afford more in order to attract quality judges -- if higher pay actually does that -- something else to consider is the role that rising salaries has on the selection process for judicial jobs, as one of the most recent contested elections in northwest Louisiana showed.

Despite the fact that judicial contests – reinforced both by campaign finance law and by the Louisiana Code of Judicial Conduct – are supposed to have a nonpolitical air about them, the race for the open seat on the 26^th District Court that covers Bossier and Webster Parishes last year had all the trappings of an issue-promoting, mud-slinging tussle that one might expect in an election to legislative or executive office.

By and large, norms of judicial contests typically carry the expectation that the person to be elected presides over a non-policy-making part of government, where competence and integrity as a jurist should decide who gets the job. The candidates are supposed to comport themselves as above politics, in order to emphasize their fairness and impartiality they would portray if on the bench.

All of which has been turned on its head in this race. On the surface, past assistant district attorney and currently privately practicing Whit Graves may have seemed to start this with his proclamation that his election would end up lowering constituents’ taxes. Interjecting the issue of fiscal probity into a kind of contest where this seldom is seen, he argued that he would prompt a reorganization of the district’s courts in a way that would obviate the need for tax increases to offset additional spending for maintaining a new judgeship.

But this claim promises much more than it is likely deliver. Besides the fact that he alone can’t produce this – a majority of the six judges would have to agree with this idea – the disparate funding mechanisms of running a court don’t really draw directly on taxpayer dollars, primarily dependent upon the state for salary, other jurisdictions for infrastructure, and user fees for the remainder. As the district, like most, also has seen a declining caseload, it also seems unlikely that a new judgeship would need creation any time soon, and there’s no way the judges would reorganize their case flows in a way that costs one of them his job, if that’s even possible.

At best, this kind of reform, involving tracking of cases to specific judges, will make the court operate more efficiently, but little cost savings can be realized, much less any to be passed along in reduced taxation, even indirectly. This aspect commends this reform, but it doesn’t really do what Graves claims.

Yet articulating this may have helped him into the runoff, which then introduced a long-planned deviation from the judicial campaign norm by the other survivor of the general election under these circumstances, long-time in private practice but now an assistant district attorney Mike Nerren. Months earlier, the Nerren campaign had started push-polling with calls denigrating the other candidates in the race. But it never publicized the information, waiting in hope of making the expected runoff and to see who with – because only going with it in a runoff could there be any assurance that a voter turned off by the negative information would have only Nerren as the alternative voting choice.

In the case of Graves, this dealt with a 2001 judgment affirmed by the state Supreme Court that, relative to a case in 1999 when an assistant district attorney, Graves had been slow despite apparent full awareness of his obligations to file necessary paperwork. It was more bureaucratic incompetence than lack of judicial integrity on his part, and the Court was impressed enough by his response to sentence him to a lesser punishment than typical.

While this constitutes an unforced error on his record and certainly is an issue of competence, Nerren campaign fliers luridly proclaimed that Graves “lied to the Louisiana Supreme Court,” and, without full context, used report quotes that he “misled” and his actions “caused injury to the integrity of the legal system.” It trumpeted his suspension, but, naturally enough, not the Court’s complimentary words about his cooperation that garnered a lighter penalty.

Obviously, candidates may publicize anything, hopefully based in fact, they want about opponents, but the Nerren campaign’s tactic in this instance significantly departed from the norm. Typically, judicial candidates want to appear as above the political fray, but such blatantly negative campaigning invited Nerren to be thought of not as somebody wishing to ascend to an exalted (whether it really is) office of judge, but instead as a grubby politician whose vindictiveness may make him seem ill-suited for plying as an arbiter on behalf of the citizenry. It became a calculated risk: would such an attack turn off more people about Graves and push them to Nerren’s camp than (just as perhaps might have happened with the push polling) will be alienated from voting for Nerren by the use of such tactics and instead vote for Graves?

Graves, for his part in response, sallied forth with a weak effort tying Nerren to black Democrat political interests courtesy of the Nerren campaign paying for what looks like a recommended sample ballot placement with other Democrats. That suggested his campaign had written off that vote and hoped this mailer would get a rise out of voters turned off by those interests.

It may have been the difference but in reverse, although Nerren won by more than a trivial amount. In the last few days of the race, operatives supporting Graves and his campaign stepped up on the theme of tying Nerren to Democrats, which might have bumped up turnout in favor of Nerren in predominantly black precincts. Nerren also continued to spend much larger sums than Graves, particularly in phone banks where the message there conveyed was positive about Nerren.

In the end, old fashioned political muscle and good timing – go negative early on the opponent, then come back with a positive message to vote for you – beat the more novel approach that didn’t go credibly negative nor early enough. The last two high profile judicial contests – the first being the 2008 race where Judge Mike Craig ousted 20-year incumbent former Judge  Dewey Burchett – in the same district were noted for their negativity.

The trend may be here to stay, precisely because these jobs pay so relatively well, with state jobs ranging from just under $140,000 to just over $150,000 annually based upon position. That's much more than can be made working for a district attorney and for many in private practice. Further, with lengthy terms of 6-10 years and a history of reelection almost always without any challengers (Burchett was the last area judge to be defeated), it makes these slots, where one largely sets his own workload, highly sought.

Thus, a reason to oppose the bill would be because it would exacerbate this tendency to see these jobs as plums so rewarding that campaigning for them becomes more vitriolic in order to gain such a valuable prize. The example above becomes more likely to serve as the norm if the raise is approved.