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The Legal Intelligencer has published a commentary piece (subscription required) by PMC and PMCAction entitled “People Should Decide on Change of Judicial Selection Process.”  The piece focuses on the process required to amend the constitution to change how judges are selected.  This process requires the legislature to pass the amendment in two successive legislative sessions.  Second passage is followed by a public referendum.  That means the constitution can only be changed if the people of Pennsylvania vote for it to be changed.

We trust the people of Pennsylvania to make decisions about how to select appellate court judges:

Pennsylvanians for Modern Courts and PMCAction believe the people of Pennsylvania should have the opportunity to decide whether to change the way we select our appellate judges. It has been 40 years since the question was last put to the people, and, in those 40 years, judicial elections have changed dramatically. We believe that it’s time for Pennsylvanians to take a serious look at how appellate judges are selected and determine whether it’s working or if we need a change.

We wonder why our confidence in the public is not shared.  Many defenders of the current judicial election system claim they oppose change because they want to protect the franchise.  But this claim cannot be reconciled with their refusal to let the people vote on this critical issue.

It’s time to find a better way to select appellate court judges — a way that doesn’t rely on expensive campaigns and that reduces the influence of random and irrelevant factors like ballot position, name recognition and fundraising ability. We want the people of Pennsylvania to vote on whether or not to change the judicial selection process. We’re not afraid to hear their answer. We wonder why “defenders of the franchise” are afraid to let the people vote.

According to the News-Leader, two opponents of Missouri’s Merit Selection plan are taking that old adage to heart.  Although John Gentry and Sally Hargis opposed the campaign to bring Merit Selection to Greene County, MO this year, they each applied to serve on the Greene County nominating commission.  Governor Matt Blunt appointed Ms. Hargis to the local commission, but asked Mr. Gentry to serve on the appellate court nominating commission.  Mr. Gentry agreed.

It’s interesting that despite their opposition to the system, these individuals will now become part of it.  We wonder whether this will change their perceptions about how the system works.  If not, will they continue to condemn a system of which they are an integral part?

Yesterday, the Ohio Supreme Court changed one of the rules governing its judicial elections.  According to an Associated Press report on Ohio.com, judicial candidates may now make public their political party affiliations.  The rule change is part of a new Code of Judicial Conduct going into effect March 1, 2009.  There had been a ban in place on such direct advertising of party affiliation since 1995, although the rule had not been enforced since it was challenged in 2004.

Why make the change? “Ohio Supreme Court assistant administrator Rick Dove says the rule is being changed because candidates were finding ways around it. Plus, he says the court wanted to make the relationship between judicial candidates and political parties more transparent.”

This is yet another sign that judicial elections are becoming more like elections for other public offices, despite the unique role judges play in our government.  If judges really are different, shouldn’t we treat them differently from the get-go, including how they get to be judges?

In its year-end story round-up, The Daily Page in Wisconsin discusses the Wisconsin State Journal’s call for Merit Selection, calling it the year’s “Best Crusade:”

[The issue is] reform of the state’s system of selecting Supreme Court justices. Instead of letting governors pick most of them, interspersed with ugly contests bankrolled by special interests, the paper is calling for merit selection, where applicants are culled by a nonpartisan panel. Don’t think it’s a good idea? Just watch the high court election we’re likely to have next year.

As we’ve written here and here, Wisconsin judicial elections have been getting more expensive, partisan and divisive.  The expectations are that this will only intensify.  We hope the Journal’s “Crusade” will continue to attract positive attention and gain more adherents.

An editorial in the Des Moines Register praises the Merit Selection system Iowa uses to select its judges:  “Iowa’s system is far better than electing judges, which introduces politics and the taint of campaign cash into the judiciary.” We, of course, agree, and hope that Pennsylvanians soon get the opportunity to decide if we should change the way we select judges.

The editorial also looks to the recent retention election results in Iowa as evidence the system is working.  This year, all the judges on the ballot were retained.  The editorial views that as a positive sign:

In the past 35 years, voters have removed only four judges, which is how the process should work. Removal shouldn’t be based on the popularity of decisions, politics or ideology. It’s merited only when there is evidence of misconduct or that a judge is unfit, and where the court system’s judicial-disciplinary process has failed.

What the editorial describes is a meaningful retention process as an integral part of a Merit Selection system.  This has been a key feature of the Merit Selection legislation introduced this past year in Pennsylvania.

Thanks to Gavel Grab for alerting us to this news from Ohio: now folks can contribute more to judicial campaigns in Ohio.  According to the DispatchPolitics, “Candidates for judicial posts in Ohio will be able to collect 15 percent more from virtually all types of contributors next year under new limits approved this week by the Ohio Supreme Court.”  The news article and Gavel Grab’s post have a chart showing the new contribution limits.

The increase follows the mandatory four year review of contribution limits.  Asked why the increase was made, a spokesman for the Ohio Supreme Court “said the justices opted for the increases so ‘candidates’ buying power stays in pace with inflation.’”  Another sign of how important money is in judicial elections.

In the wake of another expensive Supreme Court race, Alabama is looking for a way to deal with the problem of money in judicial elections. The Press Register reports that a bill has been introduced into the legislature to cap contributions to judicial campaigns at $500; currently there are no limits:

Critics have said the money present in the campaigns could lead to judges feeling beholden to contributors should they appear in court. Language in the act says that the large amount of money in judicial races creates “the potential for corruption and, as important, the appearance of corruption.”

This is not the first effort to address the problem. To our mind, contribution limits are not the best solution, because it doesn’t remove money from the process and actually encourages candidates to seek out even more donors. But we’re glad others are taking note that there is a big problem when judicial candidates raise money from the lawyers and parties who they’ll ultimately be judging.

The Montgomery Adverstiser reports that the Alabama Attorney General will be investigating the conduct of certain outside groups that ran ads and made phone calls to voters during the recent judicial elections. The issue surrounds allegations that false information was spread in these calls about one candidate. The state Bar Association criticized the misinformation and urged the Attorney General to investigate. Although the Attorney General agreed to do so, he argued that the Bar Association’s criticism of the camaign conduct crossed the boundaries into inappropriate partisanship.

The news report makes one wonder, however, whether the tension between the Attorney General and the Bar Association stems more from their differences over the best way to select judges:

King [the Attorney General], an advocate of judicial elections, said another of the association’s news releases portrayed judicial elections as demeaning.

That news release talked about the rising cost of judicial campaigns and the growing role of special interest groups in campaigns.

White [Bar Association president] sent a letter to King on Wednesday calling the news releases “a necessary and appropriate response.”

While reasonable people can and do disagree about how best to choose judges, this debate should not influence action on complaints about campaign misconduct. We hope Alabama will be able to separate these issues and give each the full and fair examination it deserves.

There’s an old saying that in an election, someone wins and someone loses, but no one takes down the signs. Well, in addition to those signs hanging around, we have the spectre of campaigns raising funds to retire their debts. Winners and losers alike share this need, but special issues are raised when winning judicial candidates, who soon will be taking the bench, are in need of funds.

The ClarionLedger reports that recently elected Mississippi Supreme Court Justice Jim Kitchens must raise funds to pay off a campaign debt of $300,000. Lawyers across the state are being asked to contribute. Kitchens’ campaign manager Sam Hall, said the requests are not limited to lawyers. When asked about a phone bank fundraiser directed to lawyers, Hall said: “There is no fundraiser. . . . What we are having is normal campaign business.”

Hall further stated that contributions would not influence Kitchens on the Court, and he explained that Kitchens does not attend fundraisers or view contributor lists.

But we still think that a system that’s set up to have judicial campaigns raise money from lawyers and parties who will appear before them doesn’t make any sense. And it gets worse when the lawyers and potential parties are asked to contribute after the election. Now those contributors know that their money is going to help someone who will be sitting on the Court.

Whether or not a judge knows who contributed what when, this just doesn’t look right. We can understand why the majority of people believe campaign contributions influence courtroom decisions.

According to an Associated Press report, judicial selection reform is on a lot of people’s minds.  “More than a half dozen states have either put questions relating to judicial selection to voters this year, or have legislatures planning to discuss the topic in 2009.”  This shows that people care about this issue and realize how important it is to ensure that we are using the best system to select our judges.

This isn’t a question that states answer once and for all, as the striking diversity of selection methods across the nation demonstrates.  The people should have the opportunity to reexamine the judicial selection system to make sure it is working to select the most qualified, fair and independent judges.

We want Pennsylvanians to have the opportunity to voice their opinions about how we choose our appellate judges.  A lot has changed since the people last had this opportunity forty years ago.  We believe it’s time to ask the people again — should we continue to elect our judges in expensive, partisan contests or should we use a different system that emphasizes qualifications, skill, experience and temperament?

It’s time to let the people decide.