judgesonmerit.org

The Washington Post reports today that United States Supreme Court Justice Ruth Bader Ginsburg believes states should be prohibited from electing their state judges. Ginsburg expressed particular concern over the fundraising and specific campaign promises inherent in judicial elections. During a question-and-answer session at the National Association Meeting for Women Judges held in Washington D.C. on Thursday night Ginsburg said,

If there’s a reform I would make, it would be that.

For those states that continue to elect their judges, Ginsburg favors limits on the kind of political speech that judicial candidates can engage in during their campaigns.

Ginsburg noted that she was a dissenter when the court ruled in 2002 that states could not limit the kinds of issues that judicial candidates discussed. She called the majority’s ruling — that limits on political speech violate the Constitution — the “Gertrude Stein” decision: “An election is an election is an election.”

Justice Ginsburg is not the first U.S. Supreme Court justice to condemn judicial elections. Her former colleague, Justice Sandra Day O’Connor has been a vocal opponent of the process for many years and has made the issue a priority since her retirement in 2006.

Pennsylvanians should heed the advice of Justices Ginsburg and O’Connor and make the move  from judicial elections to a merit selection system of choosing appellate court judges. To do so, the state will be required to amend the Pennsylvania constitution. Legislation will need to pass twice consecutively in both the House and Senate before the question would be put to the public via a referendum vote. Legislation is currently pending that would begin this process.

A new study by the American Judicature Society (AJS) examines the frequency by which contributors to the campaigns of Pennsylvania Supreme Court candidates later appear before that subsequently elected justice in court.

Earlier this week at PMC we issued a press release detailing the findings of the study. The study’s results have already caused the press to sit up and take notice (see below) and a similar response from the public is likely to follow. Pennsylvanians ought not to dismiss these statistics:

In two-thirds of the cases (67%), at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.

In nearly half of the cases (46%), a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.

So essentially, in most civil cases before the Supreme Court in Pennsylvania one side has given money to at least one justice. The average citizen would rightly be astounded by this fact.

But in state like ours where we continue to elect judges in expensive partisan elections, this type of fundraising remains entirely legal. In the midst of a trial it would be unthinkable for a party to give money to the presiding judge. The judge would be forced to recuse. But perhaps a few months earlier, a future litigant would have been allowed to make a generous contribution to the soon to be judge’s campaign?

There seems to us to be an inherent contradiction here. Treating judicial candidates like those who run for other elected offices ignores the very real difference in the judicial function. Judges must never appear to be beholden to any particular person, group or interest. The fundraising that accompanies judicial elections simply is at odds with that fundamental principle. To the public, the financial tie between a donor-party and a judicial candidate does not magically disappear once that now-elected judge dons the black robes.

The Pennsylvania bench houses many excellent judges who are able to remain fair and unbiased no matter who comes before them. But as is stated in Canon 2 of Pennsylvania’s Code of Judicial Conduct, “judges should avoid impropriety and the appearance of impropriety in all their activities.” We have said before—perception matters. And the public perception is that money plays too great a role in our courts. Once public confidence has disappeared, the integrity and legitimacy of the judiciary follows.

For additional media coverage, see:

Capitol Ideas, Commonwealth Confidential, Gavel Grab

Pennsylvanians for Modern Courts today announced that a new study by the American Judicature Society confirms Pennsylvanians’ concerns about the problematic role of money in judicial elections. AJS reports that in 2008 and 2009, more than two-thirds of the civil cases decided by the Pennsylvania Supreme Court included a litigant, lawyer or law firm who previously had made a campaign contribution to at least one of the elected justices.

The AJS  study examined the 112 civil cases decided by the Court in 2008 and 2009 and determined the number of cases in which at least one of the litigants, attorneys, or law firms involved had previously made a contribution to the election campaign of at least one justice.

The degree of overlap between the list of contributors and the list of those appearing before the Court is eye-opening:

• In two-thirds of the cases (67%), at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.

• In nearly half of the cases (46%), a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.

Malia Reddick, Director of Research and Programs at AJS observed:

We were particularly struck by the number of cases in which the same contributors had made campaign donations to a majority of the Court’s members.

The AJS study does not attempt to determine whether campaign contributors received more favorable rulings. PMC’s Marks explained, however, that:

When one party to a case has contributed to a member of the Court deciding that case, it creates an appearance of influence that causes citizens to doubt the fairness of our judicial system.

Legislation is currently pending in the Pennsylvania legislature to amend the constitution to implement Merit Selection for appellate court judges. “Merit Selection takes money out of the selection process and ensures that we select judges based on their qualifications and experience, not the size of campaign war chests,” concluded PMC’s Marks.

After more than twenty years on the bench, Ohio Supreme Court Chief Justice Thomas Moyer will step down this year. Currently the longest serving chief justice in the United States, Moyer’s final order of business will be to attempt to change the way Ohioans select their state judges. Moyer has joined forces with both the Ohio bar and the League of Women Voters in pushing for this much-needed reform.

Like Pennsylvania, Ohio continues to elect its state judges in contested political elections fueled by campaign donations from contributors that may later appear before that judge in court. Moyer is advocating for a switch to a merit selection method of choosing judges that is similar (but not identical) to the one currently being considered in the Pennsylvania legislature. In both instances, a nominating commission would be tasked with screening potential nominees for the qualities most desired in a judge—fairness, experience, and judicial temperament.

While excellent judges may result from elections, the risks associated with judicial fundraising are ever-present. A Friday editorial out of Ohio considers Moyer’s argument:

…[M]ost voters believe campaign contributions influence decisions…The overriding goal is to break the influence of big money in judicial campaigns, helping to restore public confidence in the courts.

Moyer has encountered opposition from several of his fellow justices. He lamented that few judges are willing to criticize the avenue that brought them to the bench.

Yet that is not always the case. State judges across the nation have spoken out against judicial elections.  In the 2009 Pennsylvania Supreme Court election, both candidates criticized the fundraising element of the process. Many Pennsylvanians perceive such fundraising as “justice for sale.” The legitimacy of a court’s decision is only as good as the public perceives it to be. By continuing to elect our judges we do a disservice to both the citizens and the courts of our Commonwealth.

JudgesOnMerit and other like-minded groups and coalitions across the country are working hard to spread the message that judges, particularly at the appellate level, should not be elected. Instead, we argue, for each vacancy, judicial candidates should be screened by a non-partisan citizen panel representing the diverse spectrum of interests in the community, which will then pass on a few names of highly qualified individuals from which the governor will nominate one.  This nominee would be subject to Senate confirmation. The public would have input in the vetting process, and will have the ultimate say in retention elections, where, after 4 years in office, voters would decide whether the judge would serve on the bench for a full ten-year term.

The primary reason for the impassioned calls to end appellate judicial elections is because the judiciary is different from the other branches of government. In civil cases, judges hear disputes between parties and make decisions favoring one party over another, often in matters of the greatest import. That unique role gives judges direct power over the lives of individuals, and is the reason why throughout history, the impartiality of judges has been a keystone of democracy. Many things affect and protect this impartiality, including strict canons of judicial conduct, systems of judicial discipline, and recusal standards (rules whereby judges dismiss themselves from cases where they have an actual or perceived conflict of interest). But perhaps the most important yet least appreciated pillar of judicial independence relates to the way judges are selected in the first place.

The founding fathers of our nation, our commonwealth, and our sister states recognized the need to keep judges out of the political fray, and so, across the board, provided that judges be selected in some form other than popular elections. It was only later, during the Jacksonian populist movement in the mid-19^th Century that states began shifting to popular elections of judges. Whatever motivated the shift at that time, and there has been much discussion on the issue, it is high time to return to the foundational principles of judicial independence.

If we want judges to be independent – that is, to make decisions based on impartial interpretations of the law, to set aside politics, and to protect the interests of individuals even in the face of popular opposition – it is inappropriate to ask judges to campaign for their positions. But it is downright nonsensical that judges raise money from the very parties that frequently will appear before them in court.

A study in this month’s Judicature magazine, published by the American Judicature Society, reveals that in 2/3 of all cases heard by the Pennsylvania Supreme Court in 2008 and 2009, at least one party had contributed to the campaigns of at least one of the justices (and in almost half the cases, at least one party had contributed to at least 4 justices, that is, a majority of the bench).

Many of our readers know this to be a general problem, and will likely be shocked by this statistic. But what, exactly, is the problem? Is the problem that because judges’ campaigns take money from the parties that have or will appear before them in court, those judges are corrupt? Certainly not. Even in states such as our own, where candidates for appellate judgeships sometimes engage in nasty partisan campaigns, and where factors other than qualifications (such as ballot position, name recognition, and party affiliation) often decide elections, those that make it to the bench are by and large fully qualified to serve. Is the problem then that judges will tend to favor a contributing party in a dispute over a non or lesser contributing party at a sub-conscious level? It is very difficult to measure something like this through objective research, but it is at least a possibility. As the recent U.S. Supreme Court decision in Caperton v. Massey recognized, human psychological tendencies and weaknesses are such that when enough money is involved, at least a risk of actual bias or prejudgment may be created.

The greatest problem, however, has to do not with outcomes in specific cases, but with the effect judicial campaigning and fundraising have on the public’s perception of justice. We pay respect and honor to judges when we address them; we clothe them in grave black robes; and we have them sit elevated from the rest of us, looking down in judgment. A simple traffic court judge is addressed as “Your Honor,” while even the office of the President of the United States commands no such title. All of this, so that decisions handed down by the courts are respected – and that respect is so critical because the judiciary as an institution has no means to enforce its edicts.  Indeed, for a court to have any power at all, the public must believe that justice, and not some perversion of it, is being meted out in its marble hallways, and that judges are impartial arbiters of disputes and interpreters of law rather than mere political actors.

That is the reason not a single other country in the world elects judges. And it is the reason why just the perception of the potential for impropriety alone is so damaging to our democracy. Whether or not a judge is actually corrupted by campaign contributions, or tends to sub-consciously favor a contributor over a non-contributor, the public perception that such a misbalancing of the scales of justice can occur is inherently present in an elective system. We know this at a visceral level: it just smells wrong when a judicial candidate’s campaign asks a person for money and the judge later rules on that person’s dispute. Despite the fact that we elevate the judiciary in so many ways, by essentially forcing judges into the political fray, we demean our collective respect for the concept of justice itself.

Merit Selection is not a perfect system. Some who argue against it make valid arguments. But it may, to paraphrase Sir Winston Churchill, be the worst form of judicial selection “except all those other forms that have been tried from time to time.”

This will be my final post on JudgesOnMerit, though I will certainly stay involved in the fight for Merit Selection in Pennsylvania. I wish everyone at PMC as well as Shira, Susan, and the other bloggers at JudgesOnMerit the best of luck in this campaign. To all our readers: keep reading, keep communicating with your legislators, and help us keep money away from the courtroom (except for adequate funding, of course).

A Des Moines editorial expressed profound relief that a piece of legislation aimed to change the way judges are selected for the state Supreme Court—from their current method of merit selection—was ultimately tabled:

The proposed legislation came in response to Iowa’s recent Supreme Court decision legalizing gay marriage. Some in opposition to the ruling sought to rid the court of those justices they disagreed with by putting themselves in a position to elect new ones.

The ultimate goal is to prevent the Iowa Supreme Court from issuing rulings in cases. . . that might be unpopular with certain groups. That would, of course, be the end of an independent judiciary as envisioned in the Constitution, converting the courts into another political branch.

We rely on judges to apply the law as written and interpret newly arising legal questions based on both that law and the facts. Judges must be free to make difficult decisions, protected from the “changing winds of popular sentiment.”

This is not to say that the public has no recourse if it disagrees with an opinion. The law relied upon by the judge  may be changed. Come November there will be a ballot question allowing Iowans to vote on a convention to amend the state constitution. The political process provides the proper avenue for pursuing such changes; but the courts must remain impartial interpreters of the law as it stands.

The editorial states that Iowans would ultimately regret a change to their current system of merit selection:

Just ask those states where judicial elections can cost hundreds of millions of dollars, involve attack ads on television and put judicial “candidates” in the position of having to promise certain rulings in exchange for financial and/or electoral support.

States like Pennsylvania, which are all too familiar with the hefty price tags that accompany judicial elections ($4.6 raised in the 2009 Supreme Court race) and the fear that a campaign contributor may later appear before the elected judges in court and thus receive a favorable ruling.

Iowa did away with judicial elections in 1962. It’s high time Pennsylvania follow suit. Legislation is currently pending in the PA House and Senate to switch to merit selection of judges on the appellate level. The importance of this legislation cannot be overstated.

This month’s ABA Journal makes a strong historical argument for merit selection, noting that from the time of our nation’s conception the founding fathers contemplated the acute importance of having a fair and impartial judiciary. To this end the founders constructed the Constitution to provide for a separation of powers between the branches of government to ensure that the judiciary remained above the political fray.

Yet politics have consistently managed to creep in. Judicial elections, in which candidates run on partisan tickets and whose campaigns are largely supported by political parties, lawyers, and law firms are perhaps the best example. These donors are likely to appear before that subsequently elected judge in court, creating an appearance of bias, if not outright bias itself. The ABA points out that judicial elections are uniquely an American problem, and one that threatens the credibility of our government:

No other nation in the world elects judges, yet 39 states elect at least some of their judges. The financial and political pressures of running for office inevitably undermine the public perception of a prospective judge’s integrity and ultimately create distrust of the fairness of our judicial system.

The need for merit selection of judges has been exacerbated by the out-of-control nature of judicial election fundraising in the modern day political environment:

Between 2000 and 2007, state candidates raised $167.8 million—more than double the total raised throughout the entire 1990s. Merit-based appointments via transparent, diverse nominating commissions are the best means of ensuring fair and impartial courts. A judicial system that requires judges to solicit contributions from interests appearing before the court risks removing the blindfold from the eyes of Lady Justice.

Pennsylvania is leading the pack in judicial candidate spending for a single seat in a state Supreme Court election, with over $4.6 million raised. Pennsylvania should take a lesson from history, change to a system of merit selection, and demand that money be checked at the courthouse door.

The Jewish Social Policy Action Network (JSPAN) announced yesterday that it is officially endorsing a change to the Pennsylvania Constitution that would provide for merit selection of appellate judges in the commonwealth. The full text of the resolution is below:

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JEWISH SOCIAL POLICY ACTION NETWORK

RESOLUTION ON MERIT SELECTION OF JUDGES

Pennsylvania is one of a few states that choose all their judges in political elections.

Races for election to the appellate courts – the Supreme Court, Superior Court and Commonwealth Court – are statewide efforts requiring large sums of money, sometimes running into millions of dollars.  Candidates seek endorsements from the political parties in each county, and also donations that typically come from lawyers who may appear before them after they are elected. Candidates lose the appearance of independence in the process.  The recent Supreme Court decision in Citizens United v. Federal Election Commission may be extended to state races, introducing corporate funding and even more potential for the real or apparent compromise of judicial candidates.

Despite the endorsements, spending and campaigning, few voters other than lawyers know much about the individual candidates or their qualifications.

Only the most qualified individuals – based on legal skill, experience, temperament and reputation for fairness, impartiality and independence – should become judges.  The system for selection of judges needs to focus on that goal.

JSPAN endorses changing the state constitution to provide for the merit selection of judges of our appellate courts through a process that avoids the need for political endorsements, campaigning or major fund raising by the candidates.

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Dan Hull over at What About Paris offers some interesting thoughts on why states should give up on electing judges and make the switch to Merit Selection. The bottom line:

Judges should not have “constituents,” i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up.

Hull notes that the very fact that states need campaign contribution laws to regulate judicial campaigns sends two clear – and very disturbing – messages to the public:

1. Judges, like mayors and congressmen, have “constituents”.

2. Justice, like real estate or widgets, is “for sale”.

We know that the public is very concerned about this already.  And Pennsylvania’s most recent Supreme Court election in which two candidates raised nearly $4.67 million isn’t doing anything to ease those concerns.  Indeed, even the candidates themselves expressed concern that the fundraising arms raise made it seem that justice is for sale. And if sitting judges (as both candidates were) are so concerned, that certainly doesn’t send the message that the public has nothing to worry about.

Hull offers this colorful but thought-provoking comment:

We appreciate that many of the some 10,000 elected American judges were excellent lawyers, and that as jurists they do first-rate, honest, exemplary, and often inspiring work. We have indeed stayed loose and open-minded on this subject. Three or four of our friends are former elected state judges. We say hello to them in public–and once even had one to dinner. We would probably not object too strongly if one of our sons or daughters very briefly dated one.

But elected benches are by nature glaringly “fishy” (i.e., “…dang, Nadine, the campaign money to the judge last year…just don’t seem right…the dog don’t hunt…”) to even the most casual observer in the Midwest or South, and wherever else American horse sense abounds.

His solution is one we whole-heartedly endorse for the appellate courts of Pennsylvania: Merit Selection.

The problems with Pennsylvania’s judicial elections took a national spotlight this week. The Friday night primetime PBS news show “Bill Moyers Journal” was devoted this past week to the question we’ve been asking for a long time:

How would you feel if you were in court and knew that the opposing lawyer [or party] had contributed money to the judge’s campaign fund?

The show’s response to the question posed sends a grave warning to the citizens of Pennsylvania and of other states that elect judges:

This is not an improbable hypothetical question, but could be a commonplace occurrence in the . . states where judges must raise money to campaign for their seats — often from people with business before the court.

Though many states have elected judges since their founding, in the past 30 years, judicial elections have morphed from low-key affairs to big money campaigns. From 1999-2008, judicial candidates raised $200.4 million, more than double the $85.4 million raised in the previous decade (1989-1998).

Because of the costs of running such a campaign, critics contend that judges have had to become politicians and fundraisers rather than jurists.

Friday’s show discusses the expected impact the recent Citizens United decision will have on judicial elections, and starts with a re-airing of the jaw-dropping 1999 investigation that focused on “justice for sale” in 3 states, Pennsylvania, Louisiana, and Texas. In what can best be described as tragic irony, the 1999 show began in Wilkes-Barre, Pennsylvania, ground-zero for the infamous Luzerne County courthouse scandal, and details the tortuous fundraising and campaign strategizing required to get a seat on the Luzerne County bench.

One of the judges whose campaign for election was profiled, Peter Paul Olszewski, was not retained for another term in the 2009 retention election, in large part because of his perceived association with Michael Conahan, now charged with masterminding the cash-for-kids scandal. The 1999 segment quoted a candidate who ended up losing her election:

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: True enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It’s a system that disturbs even the winning media consultant.

This system surely can only further erode the confidence of Luzerne County and Pennsylvania citizens who have seen first-hand the corrosive influence of money on judicial conduct.

The full transcript of Friday’s show is available in three parts, here, here and here. The latest numbers in Pennsylvania, which the show’s website attributed to Pennsylvanians for Modern Courts, reflect that a record amount of money was spent on the latest race for a seat on the Commonwealth’s highest court.

The show helps make apparent why electing judges is so problematic: unlike other public officials, judges have to resolve disputes between parties on a daily basis. The expectation is that the judges will be completely impartial and fair to both sides. But when they are forced to raise money to get their seats, and when that money inevitably comes in from the very parties that appear before those judges, the public has a hard time believing that the justice being delivered is not influenced by that money.

The solution other states have found, that we believe Pennsylvania needs to implement, is to select judges based on merit, not fundraising abilities or other factors unrelated to a candidate’s qualifications as an impartial jurist.

BILL MOYERS: Do you think that [Justice O’Connor’s] idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. . . . Nothing’s perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

The problem is not that voters can’t make good decisions; it’s that the process of electing judges is a system that values fundraising and campaigning above qualifiscations. And in that kind of system, it’s very hard to cut through the rhetoric and soundbytes to get the information you need to make a good decision.