(FORTUNE Magazine) – ASK MR. STATISTICS

Dear Oddsfellow: If I heard the anchorman straight on the 5 p.m. news, which admittedly gets a certain amount of high-buzz competition from the happy-hour crowd here at the Big Belt Lounge, Bob Dole is currently sticking it to Bill Clinton over the Administration's judicial nominees, averred to be squishy soft on crime and engaged even now in "dismantling those guardrails that protect society from the predatory, the violent, and the antisocial elements in our midst." Invariably appended to the guardrail argumentum is the saga of Judge Harold Baer Jr. of New York, the Clinton-anointed robester who recently posited that running away from cops is normal behavior among the proles and therefore presents no reason for thinking something sociopathic is going on, so the gendarmes had no right to search the car where the drug transfer was taking place at 5 a.m., and the evidence had to be suppressed, or at least that was the state of play until the ruling proved unpopular with the op-edsters of America, not to mention image counselors in the White House, at which point Baer said, hey, just kidding, and reversed himself. But, of course, that's only an anecdote. And White House Counsel Jack Quinn was quoted in USA Today as declaiming: "We can match Senator Dole anecdote for anecdote."

So who's right? Specifically, what the lads in the lounge are demanding between brandy sours is some kind of broad-based empirical data indicating whether the bad guys do or don't get better odds when they go up against Clintonian judiciasts. Also a ruling on whether the removal of guardrails entails any "dismantling." Why can't you just take them away?

Larry the Lounger

Dear Lizard: Although it may not solve all their problems, the database your guys need resides in a study recently presented at the annual meeting of the Southwestern Political Science Association by Ronald Stidham of Appalachian State University, Robert A. Carp of the University of Houston, and Donald R. Songer of the University of South Carolina. The study covers thousands of rulings in criminal, civil rights, and regulatory cases, but Mr. Statistics will stick to the crime data.

Here the figures show that the perpetrating classes clearly have a better chance with some justice dispensers than with others. At the district level, they do best when up against dispensers appointed by Carter (winning 38% of the time) and worst against Reagan appointees (23%). In the appellate courts, Carter judges are again most likely to rule in favor of defendants (40%), judges named by Ford least likely (20%).

We now sidle up nonchalantly to the question broached: Are criminal defendants getting improved odds from the present prexy's judges? The answer is: You bet they are. Clinton judges turn out to be less pro-defendant than Carter judges but more pro-defendant than your average judge at the time Bill took office. The contrast is especially sharp when Clinton judges are compared only with those appointed by Republican Presidents.

Look at it this way. At the district court level, the defense won 12 times out of 36 times when facing Clinton judges. Our tote board shows odds of 5 to 1 against that many wins for defendants up against a representative sample of Republican-appointed judges. At the appellate level, where Clinton judges served up pro-defense rulings 20 times out of 65, the totalizator is again flashing odds of 5 to 1 against. "Remantle the guardrails" could be the slogan Dole is searching for, or possibly not.

GREAT MOMENTS IN LAW ENFORCEMENT

Don't expect to see Thomas Griffin of the Memphis Police Department wearing his black, pink, and purple bikini swimsuit while he's writing traffic tickets. He'll be wearing his blue uniform.

But if you attended Memphis LEAP's (Law Enforcement Advocating Peace) Fashion Showdown '96 at the Adam's Mark Hotel, you'd have seen a scantily clad Thomas. He and other members of the Police Department...were out of uniform...

Women participating got to wear black and red patent-leather outfits, the men got to wear vests over bare chests...

The show, in its second year, gives the community the chance to get rid of the old stereotypes of...law enforcement organizations...said Ron Willis of the Memphis Police Department and the founder of the event. "Let them see us in a different light besides the authoritative light," he said.

A lot of people's stereotype of the police is "big old bellies and sitting around eating doughnuts," Ron said. "To see us come down the runway in swimsuits and lingerie, I hope they can finally realize we're just regular people."

--From a news report in the Memphis Commercial Appeal.

MORE BENCH WARS

Federal District Judge Harold Baer Jr. of New York, last mentioned by Keeping Up 92 lines back and now regrettably needing to be invoked again, has been featured in three recent rounds of media coverage. First there were the news stories about the initial event: Baer's ineffably dumb dismissal of charges against some drug dealers. Round two featured the Clintonites and Doleans blasting the guy for this decision, with much palaver about forcing Harold to resign. In round three there was a sudden collective "oops!" from the media, which took to fretting about the centrality of an independent judiciary in the American constitutional system. A Nexis search on May 23 turned up 267 articles mentioning both Baer and judicial independence.

But here is the funny thing: It is hard to find anything at all in Nexis about another threat to judicial independence even though this competing entry is rated far more menacing by numerous judges and by your humble servant. This other threat, curiously invisible to America's liberal media, consists of government-sponsored task forces that keep poking away at the courts in a never-ending effort to ensure greater "diversity" in the federal justice system.

Given the stakes involved and the passions unleashed by this effort, its noncoverage seems astounding. Consider a few episodes that should have been all over the media.

--The high-voltage speech last September by federal appeals court Judge Laurence H. Silberman of the District of Columbia Circuit. The speech, to the Federalist Society, dwelt at length on the performance of the local Task Force on Gender, Race, and Ethnic Bias. Trying to sniff out bias in the D.C. Circuit, the task force interviewed judges about the thought processes of other judges. Heavily hinting at a need for quotas in hiring law clerks, it recommended that judges take "diversity" criteria into account in all such hires. It proposed that the Federal Judicial Center (set up to conduct research for the judicial branch) get into what Silberman called "re-education programs" to root out unconscious bias. It asked that judges submit to "sensitivity training." It asked for continuing oversight of all these programs. Obvious question: How could an editor getting the text of the speech on his desk not see a big, big story on judicial independence (unless, perchance, the editor's paper had its own diversity task force)?

--The revolt against the task forces. This equally unreported event took place partly in the D.C. Circuit itself, whose judges ultimately rejected or ignored the most egregious proposals, and partly in Congress. Apparently responding to Silberman's lament, congressional Republicans decided to save $1 million or so by ceasing to fund the task forces in the judiciary-branch budget. This omission triggered a snarling match in the Senate, with nine prominent Democrats registering outrage about the cut. The cuts also engendered dismay at the American Bar Association, previously groaned over in this space (October 2, 1995) for its relentless political correctness. The ABA naturally thinks the diversity task forces are a great idea.

--The effort to keep the task forces afloat. Despite the defunding, they are still alive and functioning, at some level, in most circuits--sometimes by attracting volunteers or with the help of foundations. As the ABA Journal put it recently, "creative arrangements abound." They are certainly on display in the second circuit (New York), where the task force has leftover federal money and is also getting pro bono help. It is headed by Sheila Birnbaum of Skadden Arps, a graduate of a 1989 New York State task force that ended up recommending goals and timetables for getting more minority court officers and administrators into the state judicial system. It would be a miracle if the document finally produced turns out not to be a masterpiece of political correctness.

Or if it did anything positive for the cause of judicial independence.

HEY, WANNA TAKE AN IQ TEST?

Great, you've come to the right place. And it won't take long. In fact, this test has only one question. It's a "doesn't belong" question, a class of mental teasers that is in fact quite common on tests of reasoning ability. Typical example: Which of the following four entries doesn't belong: horse, elephant, airplane, chicken? Folks who say chicken get marked wrong, and if they proceed to insist that it's the only one on the list that lays eggs--an argument actually trotted out by a budding wise guy one remembers from the fifth grade--they also get marked contumacious.

The doesn't-belong question below vaulted quite naturally into a fellow's own cortex after he had plainly spent more time than was good for him reading New York Times editorials about economic issues of the day. Question: Which of the four following editorials doesn't belong?

(1) The one on March 10 noting that "the spread of layoffs in relatively good times and among companies with strong profits has created a searing climate of insecurity."

(2) The February 25 sermon chiding big business for layoffs and preaching in the final lines: "In an election year the losers are bound to be heard."

(3) The one on April 25 about job losses attributable to corporate downsizing. It notes that the economy is creating lots of jobs but ends on a downbeat riff: "There will still be pain for those who are downsized."

(4) The one on April 5, arguing for a higher minimum wage and conceding that, yes, some low-paid workers would lose their jobs if the minimum were increased, but then saying the losses would probably be under 100,000, so not to worry--let's go for it.

Hint: The nonbelonging editorial lays an egg with most economists.

REPORTER ASSOCIATE Eryn Brown