May 23, 2005
Followup on judges post

My post on the 2005 HBA judges' poll has generated a fair amount of interest, with a lively comment thread here. I want to clarify a few points about this poll:

1. As I said in the comments, nearly every single judge in that list is a Republican. If this were merely a partisan beauty contest, I'd expect to see a lot more negativity across the board. That doesn't mean there can't have been partisan motives where Justice Owen was involved, but given the generally high marks these judges got, it seems unlikely that partisanship was the only motive.

2. When I say "generally high marks", I'm not exaggerating. I copied the poll results into a spreadsheet, which I have sorted in descending order by "Outstanding" percentage. Of 156 judges, Priscilla Owen's 39.5 Outstanding percent ranked 105th. Further, her 45.3 Poor percent was the twelfth worst. Only seven judges were rated Poor by a majority of respondents; in comparison, 25 had a Poor mark of 10% or less. The average rating across the board was 47.3% Outstanding, 30.2% Acceptable, 22.5% Poor. I think that qualifies as generally high, and it underscores my point: compared to her peers, Priscilla Owen is not very highly regarded.

3. Is this the definitive word on Priscilla Owen? Of course not. It's a data point. While I don't think political beliefs played a role in the overall ratings, that doesn't mean they didn't affect how people ranked one controversial and highly publicized judge. As my father, himself a retired judge, pointed out in the comments, some of the lawyers who took the poll may have nothing but a case in which they lost as their experience. I believe this is consistent with the overall body of evidence on Justice Owen; reasonable people can certainly disagree on that.

So take it for what it's worth. Me, I think it's worth something.

Posted by Charles Kuffner on May 23, 2005 to Legal matters | TrackBack

Charles, the HBA poll is obsolescent and samples far too small a cross-section of the local bar even to be much of a data point.

The HBA needs to spend some money to place the polling online to generate greater participation in the poll, but the HBA Board has not seen fit to invest the funds necessary to do so. Thus, the poll has suffered from poor participation for years.

That doesn't make the results necessarily wrong, but the small sampling size certainly undermines the credibility of the poll.

Posted by: Tom K. on May 23, 2005 4:03 PM

This year's poll may not be a perfect data point, but over the years Justice Owen has always been one of the very lowest rated judges in the HBA poll. The years of a polling are a valid data point. These low ratings have resulted from her uniform one-sidedness as an appellate judge in favor of corporate defendants.

Posted by: Geo. O. on May 23, 2005 10:51 PM

One quibble I add to the HBA poll is that there are three categories: Outstanding, Acceptable, and Poor. If you combine the two passing grades, the only judge who comes out on the losing end is Sam Nuchia, Tony Lindsay, Brian Rains, Annette Galik, Reagan Helm, Betty Brock Bell (by a HUGE margin).

I think there's a mixed bag here on what to take from the polls as a whole. First, they're not as damning as I think we on the D side of the aisle might like to believe. Secondly, if there is any bias for such polls, it generally tends to be in favor of large firms which usually vote rather reliably (and reliably conservative at that) but also can hypothetically get a hundred or more votes cast if one lawyer has had a notably bad experience with a judge. Trial lawyers work in much smaller shops - often in one or two lawyer shops. One of em has a problem with the judge? Big deal. But since they're also the more transient voter population, which paperwork do you think are more likely to not reach the addressee?

Regarding the sample size issues, I think it's a silly point. Many/most lawyers don't practice in a courtroom. So the issue of sample size is a nonstarter. Plus, the small voting pools for the individual judges indicate that there may be a proclivity to only vote on judges you've practiced before or have some knowledge of (whether it's from one of the hundreds of lawyers in your firm or the other trial attorney you've set up shop with). The self-selection of voting can be looked at two ways, then. And when you look at Scott Brister's 422 votes compared to Wallace Jefferson's 270, I think it bears out the theory that voters vote on those they know since Brister served in Harris County recently and more HBA members are less likely to know more intricate details of the other Supreme Court judges enough to vote on them.

Oh, and as for Priscella, the binary approach to viewing her poll indicates a 55/45 level of favorability, or at least adequacy. While I maintain that we are correct to note her judicial activism in overriding the law and will of the people, the poll does not necessarily do her in either as a conclusive verdict OR as a data point. That said, I think any US Senator would be well advised to vote against her nomination to a lifetime on the bench.

Posted by: Greg Wythe on May 24, 2005 9:56 AM

Greg, the sample size is a big issue. There are almost 12,000 HBA members. Although many are not litigation attorneys, a substantial portion are and an even a substantial number of the local transactional attorneys have regular experience with local judges' handling of cases involving transactions in which they were involved. Most attorneys who vote in the poll are (i) either from big firms that coordinate their firms votes, or (ii) motivated to vote because of either support or disdain for a particular judge. A small sample size based on that type of arbitrary polling is simply not reliable.

Frankly, the HBA could do a much better job with regard to this poll, and I will encourage them to do so. In the meantime, though, it gets more publicity than it really deserves.

Posted by: Tom K on May 24, 2005 4:11 PM

Sorry Tom, I still fail to see how polling what we're presuming to be still more lawyers who have less-to-no experience before the judges really reaches a more accurate view than that already polled ... whether we like the view or not from our respective viewpoints.

Posted by: Greg Wythe on May 24, 2005 4:25 PM