It wasn’t the typical setting for a campaign debate.
Besides the sound system and podium, there were few indicators in the Brazilian steakhouse minutes from the Strip that the first debate between two candidates running for statewide office was taking place.
The two candidates who fielded questions are probably not known to most Nevadans — Clark County District Court Judge Elissa Cadish and Court of Appeals Justice Jerry Tao, who are running for an open spot on the Nevada Supreme Court.
At the candidate forum moderated by outgoing Lt. Gov. Mark Hutchison and hosted by the Las Vegas chapter of the Federalist Society, the two judges answered questions on judicial philosophy and approach to law in the race for a position that is often drowned out by other contests on the ballot but that still holds immense dominion over the lives of Nevadans.
The seven justices on the Nevada Supreme Court serve six-year terms and run in nonpartisan statewide races; Nevada is one of 14 states that elect judges to their highest court in such a manner. Tao and Cadish are running to replace retiring Justice Michael Cherry and emerged as the top two vote-getters in a five-way primary in June.
A total of three state Supreme Court seats will be on the 2018 ballot, with Justice Lidia Stiglich running against Clark County Family Court Judge Mathew Harter and Appeals Court Justice Abbi Silver running unopposed to replace retiring Justice Michael Douglas.
Although the race is nonpartisan, both Cadish and Tao have aligned themselves with some partisan interests. Cadish, a Democrat, has been endorsed by left-leaning groups including the Nevada State AFL-CIO, the Nevada State Education Association and the Culinary Workers Union Local 226.
Tao, a former speechwriter and legislative assistant to Sen. Harry Reid, dropped his Democratic registration and filed to run as a nonpartisan on the last possible day to do so. He’s been endorsed by Republican gubernatorial candidate Adam Laxalt and the National Rifle Association, and has reported making campaign payments to the same political consulting firm that is working on Laxalt’s 2018 gubernatorial run. His campaign website also states his support for “school choice,” a traditionally Republican rallying cry.
Prior to his appointment to the state’s Court of Appeals, Tao served as a Clark County District Court judge while previously working for the county’s district attorney, as Chief Deputy Public Defender and as a private attorney.
Cadish previously worked for the firm of Hale Lane Peek Dennison and Howard prior to her appointment to the bench and is perhaps best known for her nomination to the federal bench by former President Barack Obama which was blocked for more than a year by Republican Sen. Dean Heller over concerns on her views on gun rights. Cadish eventually withdrew.
The two judges largely stayed out of partisan back-and-forth during the Friday debate, instead focusing on their similar views toward the role of the judiciary and what they hope to accomplish on the state’s highest court.
Appointed vs. Elected
Cadish and Tao share a similar biographical aspect — both have been appointed (Cadish to the Clark County District Court in 2007, Tao to the Court of Appeals in 2014) and then re-elected to the bench.
Asked by Hutchison which process was superior, both judges listed pros and cons but didn’t definitively answer the question.
Tao cited the “extremely penetrating difficult questions” that the state’s judicial selection commission and Gov. Brian Sandoval asked him prior to his appointment to the state’s Court of Appeals in 2014 as a beneficial process and said that most campaign events don’t reach that level of scrutiny.
“You go to a Lions Club, a Kiwanis Club, a union hall, they might ask you general softball questions, but no one’s going to ask you really detailed questions about philosophy, textualism, intentionalism, anything like that,” he said. “So, that, I think, is a big plus for the appointment process.”
But Tao also said that running for election keeps judges grounded in the community and able to hear from a broader array of people than just courtroom regulars.
Cadish said that both processes have flaws and aren’t necessarily immune from political pressures, but said her larger concern was that a large number of voters didn’t know how to efficiently choose a candidate in a judicial election.
“The folks who sit in our judiciary do a very important job that affects everybody’s lives every day. In a lot of ways, it’s really more impactful than any individual legislator, at least, and it’s very difficult to have a race like this for our state Supreme Court and to have in the primary 12 and a half percent of the population of Nevada who actually bothered to vote, and voted in our race, voted for ‘none of these candidates,’” she said. “It doesn’t count for anything. It’s the same as if they didn’t vote in the race at all. And that’s a real shame.”
Role of judiciary and reasons for running
Both judges said they wanted to increase the pace of rulings from the Nevada Supreme Court, which in its 2017 annual report stated it had a backlog of 1,754 pending cases at the end of the last fiscal year.
Cadish, who called herself a “law geek” said she also wants the court to issue more guidances for lower-level judges to create more uniform decisions.
“Unfortunately, now, we end up with a lot of inconsistency in the rulings from our different district judges because we don’t have guidance from our Supreme Court in so many areas,” she said.
Tao, who called himself a “super law nerd,” also cited the large backlog facing the state’s highest court as a reason for running and noted that the large number of cases pushed to the state Court of Appeals (which hears cases pushed down from the state Supreme Court) meant they dealt with an average of four cases a day.
“I can bang out a 10-page opinion in half the time it takes to do a 50-page opinion, but the 50-page opinion might have been a lot more helpful,” he said.
Oftentimes, the most publicized cases that the Nevada Supreme Court hears deal with determining the constitutionality of a polarizing law or policy approved by the state Legislature — such as the court’s decision to strike down the funding mechanism for the contentious Educational Savings Accounts program in 2016.
Tao said his personal views differed from the state Supreme Court’s historical approach to judicial review, describing himself as a “textualist,” meaning he gives primary weight to the text and structure of the Constitution as opposed to giving more weight to the intent or purpose of a law.
“If I were king of Nevada, I would be a textualist,” he said. “But Nevada is not a textualist state. The Nevada Supreme Court is overtly an intentionalist state. They have many, many decisions in which they say look at the legislative intention. They’re not purposivists. They’re certainly not textualists. But if I had my druthers, I would be a textualist.”
Tao said that relying on legislative history, or what was said during debate and discussion of a proposed law, presented problems given that elected officials may obfuscate the actual meaning of a bill while it was being debated.
Cadish said that relying on legislative history wasn’t a reliable tool for judges given incomplete or ambiguous testimony on bills, but that the practice could be part of the toolkit — including past decisions, similar laws in other states and other sections of a legislative act — that judges can use to review the law.
“They’re all part of the analysis that goes in, but the place to start is the statute itself,” she said. “And if that’s clear then you don’t need to go any further than that.”
Both judges also committed to taking a neutral look at cases before the court despite any personal feelings or concerns about the “winners” and “losers” in a particular case.
“Fairness has no place in my thought process,” Tao said. “The Legislature, if they pass a statute, gets to decide what’s fair through the democratic process. And just because I don’t like a law, that’s irrelevant. They passed a law, as long as it’s constitutional, as long as it’s not unconstitutionally vague or something like that, my job is to enforce the law whether I like it or not. And that’s just the way it is.”
Cadish echoed that sentiment.
“It’s certainly not the role of the judge to decide a law is unfair according to their personal values, and, therefore, find it unconstitutional,” she said. ‘I think everyone in this room can agree, that is not the legal process that we have in our country.”
Asked to name a significant case or ruling they participated in as a judge, Cadish cited her role in the case of Fred Steese, who spent more than two decades in a Nevada prison for a murder that he did not commit. Cadish issued a rare “Order of Actual Innocence” for Steese in 2012 and found “that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt with that evidence.”
“It’s only if you have a judge who takes the time and effort to listen to everything, to consider the possibility that someone who is charged is not guilty of that charge, only if you have someone with an open mind will they be able to find that one case,” she said on Friday. “I have a lot of habeas petitions that I consider, and rule on, and deny. But you still have to read each and every one because there’s that one needle in the haystack where somebody is actually innocent.”
Instead of citing a single case, Tao cited a line of dissenting and concurring opinions that he had submitted on the state’s Court of Appeals that emphasized what he said was an unrealized embrace of separation of powers in Nevada’s constitution by the state’s highest court.
“It has more emphasis on separation of powers than the federal constitution actually does, and yet our jurisprudence doesn’t reflect that,” he said. “So, what I’ve been trying to do in the Court of Appeals is to kind of resurrect that. A lot of these are dissents. I haven’t been able to even gather the majority, but by throwing it out there, hopefully, for the lawyers to raise in the briefs of the Supreme Court, it’s a shot at resurrecting, restoring what I think the role of the court should be in our state government.”