judgesonmerit.org

On May 14, PMC Board Chair Bob Heim will address the Commonwealth Foundation’s Policy and Principles Luncheon. The topic is “Choosing Our Judges: Election vs. Selection.” Heim will be joined by Russ Diamond Founder and Chairman of PA Clean Sweep.

We look forward to an engaging discussion. As we reported in an earlier post, Heim and Diamond recently appeared together on 1210 Tonight with Anthony Mazzarelli (WPHT 1210 AM, the Big Talker). Although they have different views about the best way to select appellate judges, they agreed that the voters should get the chance to weigh in on this question.

This is the key point — it is time to let the voters decide.

A recent ruling by the Texas Supreme Court is getting folks talking about the corrosive effect that judicial campaign contributions have on public confidence in the fairness and impartiality of judges. The court threw out an arbitration award against a Houston homebuilder named Bob Perry, who also happens to be the most prolific campaign contributor in the state. Every justice on the nine member panel has received a contribution from Perry or his family, for a total of over $260,000.

Critics in Texas are speaking out, calling this a case of “big money influencing elected judges.” Are they right? Who knows?

No one can say for sure if campaign money influenced the decision, and it doesn’t really matter. The problem is the perception this process creates. We can understand why a litigant, facing an opponent who has given thousands of dollars to a judge, would not be confident that his or her rights will be impartially protected.

Pennsylvania, like Texas, elects all judges in expensive partisan elections, where lawyers, law firms and organizations with cases in the state courts donate to judicial campaigns. We’ve got to get the money out of the process of selecting appellate court judges.

In a joint letter to the Philadelphia Daily News, PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach respond to a critic of Merit Selection. In an earlier post, we pointed out the critic’s fundamental misunderstanding of Merit Selection and unreasonable fear of letting the voters decide the best way to choose appellate judges. In their letter, our leaders neatly sum up the problem: “[The critic] does not understand what so many voters know: Judges are different.”

Heim and Fiebach point out that judges have different responsibilities than other public officials. Politicians are expected to make promises to constituents and campaign donors. At election time, those promises - kept or not - often decide their political fate. By contrast, judges “are sworn to uphold the law in an even-handed manner without regard to personal belief, political pressure, popular will, or the preferences of campaign donors.”

“How can we expect judges to campaign like other elected officials and then, when they take the bench, expect that the public will view them differently? No wonder this system breeds a lack of public confidence.”

Our leaders close with a reminder that Merit Selection advocates want to give the people a chance to decide the best way to select appellate court judges. Critics of Merit Selection seem very worried about letting the voters make this decision. Why is that?

The West Virginia Supreme Court elections continue to make the news. Earlier we wrote about justices forced to recuse (or not) from cases involving some big campaign donors. Now, at least one justice is talking about the realities of campaign fundraising in the Mountain State. Supreme Court Chief Justice Elliot Maynard has criticized the fact that a lot of attention is paid to business donations to judicial campaigns, while contributions from lawyers and law firms go largely unreported. Justice Maynard called these different levels of scrutiny “the worst hypocrisy.”

But even such concern can’t compete with the realities of judicial elections. According to the Charleston Gazette, a new study of campaign contributions shows that Justice Maynard has raised $586,873. Of that total, $134,050 was contributed by lawyers and their relatives. Maynard is not alone — one-third of the money contributed to the five candidates running in the primaries next week has come from lawyers.

As we’ve said all along, this kind of big-money politics can create the perception that “justice is for sale.” Litigants, facing opponents who may have donated thousands of dollars to the campaign of a judge or justice, might reasonably worry about whether they will be treated fairly. Even if the ruling is completely fair and in accordance with the law, the question may linger. Did money play a part in the decision?

Pennsylvania is facing a similar crisis of faith in the judiciary. As contributions to judicial campaigns increase, it gets harder for Pennsylvania citizens to trust that justice is being fairly administered. Whether it is or not is immaterial. The perception itself can potentially taint every case that goes before our courts.

The only way to combat the perception that “justice for sale” is to get money out of the judicial selection process. Merit Selection makes strong qualifications, not fundraising prowess, the most important credential for a judicial candidate. It’s time we got judges out of the fundraising business.

To implement a Merit Selection system for the appellate courts requires a constitutional amendment. This requires passage of legislation in two consecutive legislative sessions, followed by a public referendum.

The first step is now underway. Bills containing the proposed text of the amendment, as well as the enabling legislation creating the nominating commission, are currently being considered by committees in both the Senate and the House of Representatives. The text of the proposed amendment and accompanying enabling legislation are available: SENATE BILL No. 1324 and HOUSE BILL No. 2488 (proposed amendment); SENATE BILL No. 1325 and HOUSE BILL No. 2386 (proposed enabling legislation).

A summary of the legislation is available here.

In an editorial in today’s Patriot-News, we make the case for Merit Selection of appellate court judges: Merit Selection “gets appellate judges out of the fundraising business and emphasizes qualifications. It opens pathways to the bench for qualified individuals from diverse backgrounds. This should give Pennsylvanians more confidence in the ability, fairness and impartiality of appellate courts.”

We explain the lengthy constitutional amendment process, which culminates in a public referendum. We emphasize that only the people of Pennsylvania can decide — by voting in a referendum — to change the way we pick appellate court judges.

The editorial closes with an appeal to get this issue before the people: “It’s time to let Pennsylvanians decide whether expensive, partisan elections are the best way to pick appellate court judges. Legislators should be encouraged to pass this proposed constitutional amendment and put merit selection on the ballot so that we — the voters of Pennsylvania — can decide for ourselves how to choose appellate court judges.”

Minnesota Public Radio reports that in a recent speech, former United States Supreme Court Justice Sandra Day O’Connor praised merit selection as a good way to choose judges.  She spoke during a forum focusing on changing the way Minnesota selects its judges.  Justice O’Connor particularly noted that merit selection systems increase diversity on the courts: “In my home state with a merit selection system, we got much greater diversity on the bench, both racial and gender. . . . And it’s worked very effectively, more so than the election system did.”

In an editorial addressing Governor Rendell’s stalled interim judicial appointments, Scranton’s Times-Tribune points out that judicial elections make it difficult for qualified candidates from many areas of Pennsylvania to reach the appellate bench.

Due to simple electoral math, it is very difficult for any candidate who is not from the Philadelphia area or Allegheny County to be elected to the appellate courts. Diversification of the appellate courts is one of the reasons that the state should switch to a system of merit selection.

Diversity on the bench, including geographic, racial, ethnic, gender and professional diversity, is one of many important characteristics of a fair and impartial justice system. It’s something that’s elections have not produced on Pennsylvania’s appellate courts.

We agree with the Times-Tribune that it’s time for Pennsylvania’s legislators to “get the ball rolling on merit selection.”

We’ve just been reading a 2007 article by three law professors comparing elected judges to appointed judges. The professors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — studied three areas — effort, skill and independence. The independence issue grabbed our attention for two reasons. First, we care about judicial independence and its relation to how judges are picked. Second, this part of the study was completely misrepresented by American Courthouse in a post against Merit Selection.

Here’s the cliffnotes version of the study. First, the authors’ definition of independence was itself unusual; they defined and measured “independence” as the frequency with which a judge dissented from opinions authored by a judge of the same political party. Second, the authors concluded that there was no statistically significant difference in this type of independence between elected and appointed judges.

So, why is this study important? Because of how the authors interpreted the results:

“It might be that the different systems [of selection] attract different types of people to judgeships. . . . In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. “

According to the authors, elected judges are “more politically involved, more locally connected, more temporary, and less well-educated than appointed judges. They are more like politicians and less like professionals.”

So, who do we want on the bench, politicians or professionals? If I’m going to court, I want a professional.

On Sunday, the Centre Daily Times called for Pennsylvania lawmakers to consider a constitutional convention. the Times says that “it is time to start over. It is time to recraft the document by which we govern ourselves, a document that has changed little in more than a century and a quarter.”

Although we’re hoping there will be a stand alone amendment to address Merit Selection for the appellate courts, we’re glad to see that the Times included Merit Selection of appellate judges in its list of necessary reforms.