judgesonmerit.org

An editorial in the Youngstown News (Ohio) calls for a meaningful public dialogue about whether to change to Merit Selection.  Citing the recent New Politics of Judicial Elections report, the editorial observes:

The issue of money and the courts is not new. . . .

But the recent U.S. Supreme Court ruling that threw open the floodgates to corporations and labor unions to contribute to political candidates is a game changer.

Can the public be assured the courts will remain fair and independent when money is flowing like water?

The editorial notes that in the past, Merit Selection has not passed in Ohio, but it argues that changed circumstances demand a new look.  Here is the call to action:

There is no doubt that the current money-based system of filling state supreme court seats has fed public cynicism and distrust of the judicial system. It’s time — again — for an intelligent, apolitical, public discussion.

That sounds like a very good prescription for Pennsylvania as well. We hope Pennsylvanians will have the chance to have such a discussion about Merit Selection of appellate court judges.

An editorial in the Reading Eagle urges that it’s time to give Pennsylvanians the opportunity to vote on Merit Selection.   In a review of the report The New Politics of Judicial Selection, the editorial opens with these key points:

The Issue: A study reveals what we already knew: Judicial elections are becoming more expensive.

Our Opinion: It is time to switch to merit selection of Pennsylvania’s appellate court judges.

The editorial cites the rising costs of judicial elections and the increasing participation of special interests in those campaigns.  It agrees with the Professor James Sample (lead author of the New Politics report) that “‘We’re sort of playing with fire when you’re putting this much money into our courts.”

The editorial then reviews the pending Merit Selection legislation and notes that Governor Rendell and former Governors Ridge, Thornburgh and Schweiker recently joined together to support implementing Merit Selection for Pennsylvania’s appellate court judges.  The closing paragraphs are worth quoting in full:

According to a survey conducted by Pennsylvanians for Modern Courts, 63 percent of the people in the commonwealth supported replacing the current system of electing judges, and 93 percent favored putting the issue to a statewide vote.

Nevertheless, the Legislature has been reluctant to even consider a change, which would take at least two years to implement because it would require a change in the state Constitution.

Why are the 253 members of the Legislature blocking the will of the people?

Despite growing support in the legislature and the dedication of our legislative sponsors, the Merit Selection legislation has not yet reached the floor of either House. We agree with the Reading Eagle that Pennsylvanians shouldn’t have to wait any more.

An editorial in the Scranton Times-Tribune blasts judicial elections and the political money games they have become:

Judges are supposed to represent only the law. Yet in Pennsylvania judicial candidates seek the favor and, increasingly, the money of politically interested individuals and organizations.

It’s not quite clear how a nonpartisan judiciary is supposed to spring from a partisan process.

This is a critical question: how is the public — and how are judges themselves — supposed to believe that judges are different from other elected officials when they get into office the very same way — through hard-fought, expensive partisan elections?  It has become increasingly difficult for the public to believe that judges really are impartial arbiters who treat all comers equally.  And this loss of public confidence weakens our courts.

The Times-Tribune endorses a different way of selecting judges — a system that would combine appointments with retention elections — as the only way to maintain judicial independence.  Merit Selection emphasizes qualifications, skills and experience in selecting judges and gets judges out of the fundraising business.  It is time for change.

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

Today, PMC partners Justice At Stake, the Brennan Center for Justice and the National Institute on Money in State Politics issued a new report analyzing the last decade of judicial elections entitled “The New
Politics of Judicial Elections: 2000-2009.” Pennsylvania is prominently featured in the Report, which examines the explosion in fundraising and spending in these elections as well as the increasing participation of special
interests.

The Report notes that Pennsylvania ranks second in the nation for election spending during the decade.  In addition, Pennsylvania was home to the most expensive Supreme Court election in the nation during the 2007-08
cycle.  In that year, there were two vacancies on the Supreme Court. According to the Report, candidate and third-party spending totaled $10.3 million.  In 2009, as the report notes, the high spending trend continued in Pennsylvania, and we saw the most expensive single seat race in our history.

The Report certainly highlights the increasing importance of cold, hard cash in judicial elections and also reminds us that poll after poll demonstrates that the public — and judges as well — believe that campaign contributions influence judicial decision making.

But there is some cause for optimism.  The Report notes that reform efforts are making progress, and that Merit Selection is gaining ground in states throughout the nation.

The Report presents a cautionary tale — state judicial elections are getting much worse when measured by the factors that affect public confidence: money and special interest participation.  The public wants
fair and impartial courts. Money is widely viewed as a corrupting influence and it undermines the public’s confidence in our courts and judiciary.  There is a clear solution: get money out of the process of
choosing judges. The most effective way to do that is Merit Selection.

Here are the links to the Report:

Full Report

Letter From Justice Sandra Day O’Connor

Executive Summary

State Profiles, 2000-2009

Pennsylvania Supreme Court Chief Justice Ronald Castille recently told the Pennsylvania Prothonotaries’ and Clerks of Courts’ Association that there is no reason for these positions to be elected. “The way I see it, it should be a professional person’s job, and they should be answerable to the court system.”

The remark sparked an article in Philadelphia’s The Bulletin on Chief Justice Castille’s views regarding merit selection for judges. The justice is in favor of abolishing the current system of judicial elections for appellate level judges, including the Supreme Court. The Bulletin talked to Pennsylvanians for Modern Courts Deputy Director Shira Goodman.

It’s not new. If you look back, [Justice Castille] talked about this for a long time. He’s talked about the electoral process not being the way for many years.

Castille is one of many high-profile government officials, as well as reform groups and regular citizens, who have called for an end to judicial elections. Governor Rendell has spoken out on multiple occasions about the need to switch to a merit-based selection process for the appellate bench. Said the governor’s press secretary Gary Tuma,

The governor has on several occasions, here in his second term, suggested that we should move to a judicial merit selection instead of electing them in the polls. The important thing is to free justices from this requirement of raising money from the legal community, and, in some cases, some people who are going to be appearing in front of them in court.

The call for merit may become even greater due to the recent turmoil on the Supreme Court, a focus of the Bulletin article. Justice Joan Orie Melvin is currently undergoing investigation for improperly using taxpayer money and government resources for her recent campaign. The Chief Justice has also been subject to attacks that he mishandled the proposed Philadelphia Family Court project.

Gavel Grab alerted us to this story out of Washington. The Seattle Times reported that a liberal advocacy group, Impartial Justice, has increased efforts to get state Supreme Court Justice Jim Johnson off the bench. With Johnson facing a challenge in the upcoming primary election, the group spent over $40,000 this week on mailers depicting Johnson, the most conservative member on the bench, nestled in the pocket of a business suit. The groups spent an addition $10,000 on a similarly themed web ad.

Before reaching the bench Johnson represented a powerful state building association, which later contributed generously to his initial campaign for the Supreme Court. Many have criticized the justice for favoring past donors. Defending himself at a recent debate, Johnson claimed he had been given a “bum rap.” He noted that he recused himself from the only case involving the building association.  

Whether there is any truth to the allegations is beside the point. This story illustrates the way interest groups have succeeded in obtaining greater control over judicial elections. Some candidates such as Johnson may receive substantial financial support from big business. But groups like Impartial Justice signify that there is push back from the other side. Explains the Seattle Times,  

All of Impartial Justice’s money comes from a left-of-center group called FairPAC, first created during the 2006 Supreme Court election in response to money being spent by conservative groups that year. FairPAC has raised about $182,000 in the last month, with more than half of that coming from three labor groups: the Washington Education Association, the Service Employees International Union, and the Washington State Labor Council.

 Political players on the right and left side of the ideological divide use the same obvious tactic to further their goals—spend as much money as it takes to convince voters to elect “their” judge. With so much money flying around, it is difficult for the public to see judges as anything other than politicians in robes. Judges are not intended to be pro-big business or pro-labor. Even if the judges themselves do not possess a specific bias, the election process leads voters to feel otherwise

Several months ago, the nonpartisan American Judicature Society released a report showing the frequency by which lawyers, law firms, and litigants who have donated money to a Pennsylvania Supreme Court justice’s campaign, later bring cases before those justices in court. Of 82 civil cases in the 2008-09 session, 60 percent involved at least one lawyer, law firm, or litigant who had made a contribution.

Yesterday Lancaster Online reported that Inside Story has re-analyzed the data collected by AJS in an attempt to determine whether campaign contributions have an actual effect on judicial decision-making. The results were inconclusive. Of the 82 cases, only 15 involved contributing law firms on one side and non-contributing law firms on the other. Contributing law firms won 11 of those cases.

Explains Lancaster Online,

When contributors win nearly three-quarters of such cases, the pattern suggests that contributions might affect judicial outcomes.

But there are several significant caveats.

Of the 11 cases that contributing firms won, eight were decided unanimously by the court. In those cases, judges who received money from law firms — and those who did not — voted together. They usually affirmed a lower court’s decision.

Other factors, such as the amount of the contribution and the actual merits of the case make it difficult to determine causation. Shira Goodman, Deputy Director of Pennsylvanians for Modern Courts said that while the study could not take into account all aspects of judicial decision-making, the public perception that money influences judges does significant harm to the court system.

It is really hard to attribute a judge’s decision to one individual factor, especially in unanimous cases.

The law is not set in stone. We can’t explain each individual justice’s reason or motivation for voting one way or another.

[But] perception does matter. People want to believe when they go to court that they had a fair hearing.

Samuel Stretton, an attorney from West Chester agrees. Last year he argued and lost a case before the Pennsylvania Supreme Court in which the opposing side had contributed a total of $36,000 to judicial campaigns. Stretton says he should have been informed of these contributions up front so that he would have had the opportunity to motion for recusal. Failure to do so “created a cynical view” of the system.

I’m not saying that it necessarily affects the outcome of a case, but it creates the appearance of impropriety, and an appearance of impropriety is not allowed for judges.

But the solution is simple: get rid of judicial elections. Says Goodman,

Get the money out of the (judicial selection) process altogether. Then you’ve taken away the foundation for the perception that judges may be biased. 

A Sunday editorial in the Cleveland Plain Dealer explained that, due to a 6^th Circuit U.S. Court of Appeals ruling, Ohioans may be forced to rethink how the state selects its judges. This may prove to be a blessing in disguise for the Buckeye state.  

The 6^th Circuit struck down Kentucky rules prohibiting judicial candidates from advertising political party affiliations and directly soliciting voters for campaign contributions. Holding that such restrictions were a violation of the First Amendment, the 6^th Circuit decision has become part of an alarming trend making judicial elections more and more like elections for other public offices. The trouble is Ohio has rules on the books similar to those struck down in Kentucky.

Writing for the majority, Circuit Judge Jeffrey S. Sutton said,

While [party] political identification may be an unhelpful way to pick judges it assuredly beats other grounds, such as the all-too-familiar formula of running candidates with familiar or popular last names.

Judge Sutton’s argument makes a certain sense; voters are given woefully inadequate information about judicial candidates and often vote solely on name-recognition. But Judge Sutton’s suggestion that identifying political affiliation will be an improvement ignores the unique function of the judiciary. The Third Branch was intended to remain above the political fray. But across the country, as safeguards such as those in Ohio and Kentucky are struck down, it will become increasingly difficult to prevent judicial elections from devolving into the hyper-politicized contests we see for other offices.

And perhaps, that is the point. States cannot have it both ways. An election is an election and no amount of safeguards can effectively keep the influence of politics from seeping in.    

Explains the Plain Dealer,

The constitutional issues flagged by the federal Appeals Court in the Kentucky case indicate that Ohio may someday find itself facing the same fork in the same road: Either the state gives its judicial candidates free rein — with, yes, a risk of wild electioneering — or the state finds a better way of choosing judges than the method it uses today.

For states concerned with upholding the integrity of the bench, the choice seems clear: find a better way. But they need not look far. Variations of Merit Selection, a hybrid of elective and appointive systems, are already in place in the majority of U.S. states. Pennsylvania legislators are currently considering such a system.

Can Ohio find a better way as well? It “shouldn’t be hard,” reads the editorial,

Almost any other method would be an improvement on the oft-criticized — and deservedly so — “name game.” 

A July 25th What About Clients? post called for an end to judicial elections, declaring, “it’s time for the States to grow up, and adopt systems of merit based appointments.” 

The post pointed out how judicial elections have led to a mischaracterization and perhaps even a negative transformation of the judicial role:  

State judicial systems with popularly-elected judges send two lousy messages: 

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

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

In a state like Pennsylvania, the idea of judges having “constituents” would not appear far off base. Judicial candidates in Pennsylvania campaign much like other politicians. Candidates travel around the state meeting with special interest groups and holding fundraising events. They air negative campaign ads intended to smear their opponents, and play up their own regional and ethnic identities. Perhaps most troubling of all, judicial candidates must run on a party ticket. Voters are left to question whether a “Republican Judge” or a “Democrat Judge” would in fact reach different results in applying the rules of law.

Is justice for sale? To say definitively that it is, is to do a great dishonor to the scores of qualified and ethical judges that do serve on the Pennsylvania bench. But it’s not hard to see why the perception of impropriety is there, and question whether money does influence judicial decisionmaking. Judicial elections have become increasingly expensive, and judicial candidates fund their campaigns primarily by donations from potential litigants. In fact, a recent study showed that 60 percent of civil cases before the Pennsylvania Supreme Court involved a litigant, lawyer, or law firm that had previously contributed to the election campaign of at least one of the seated justices. In 32 percent of cases, an involved party had contributed to at least four of the six elected justices’ campaigns. How can a member of the public, or even a lawyer, feel confident that he or she is getting a fair bite of the apple knowing that the opposing side has given money to the judge?   

Judges should not have constituents. Justice should not be for sale. Yet judicial elections paint this picture. We agree with What About Clients?: it is time for Pennsylvania to “grow up” and adopt Merit Selection.