judgesonmerit.org

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.

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 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.

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

The amount of money spent on last year’s state Supreme Court election is staggering. With at least $4.7 million raised, our own deputy director Shira Goodman noted the race to be the most expensive in history on a per-seat basis.

Today’s PA Law Weekly (subscription required) takes a look at exactly where all that money came from. While campaign finance reports indicate that defeated Democrat Jack Panella raised more than twice the amount of the victorious Joan Orie Melvin, including more than one million from the Philadelphia Trial Lawyers Association’s PAC, these figures don’t tell the full story.

A separate report compiled by the Campaign Media Analysis Group for Washington-based watchdog Justice at Stake reveals that the Republican Party sponsored an estimated $975,849 worth of television ads for Orie Melvin. The Republican party reported spending over $3 million on political campaign ads last year. The reports do not break down the spending on individual candidates, so exact numbers spent on each are difficult to determine. However, CMAG’s report, which was assembled by monitoring satellite feeds of campaign commercials and determining who paid for the ads according to their disclaimers and where they were aired, is believed to be a conservative calculation.

Charlie Hall of Justice at Stake is concerned that the voting public will not be able to truly see who is paying to support these judicial candidates.

It was a surprise to us that this third party that doesn’t appear on the ballot spent more than the candidate herself. I think this should be a big wake up call to Pennsylvania that the public should really insist on better transparency in campaign finance laws so they know who’s spending money in a campaign.

Yet more than greater transparency will be needed to combat the effect of politics on the bench. Due to the U.S. Supreme Court’s recent decision in Citizens United allowing corporations and unions to make direct expenditures to support or oppose political candidates, judicial campaigns are likely to become more and more like other political races even though the role of judges is very different from those in the other two branches.

Political science professor G. Terry Madonna worries that this “tendency will be to demean the judiciary [and] cause the public to have less confidence in the judiciary.”  In Pennsylvania, where faith in the courts has already been severely compromised due to recent scandals, such a development would only further weaken confidence in the system.

Judicial elections are no longer working for Pennsylvania. A change to a merit selection method of selecting our appellate judges is the best way faith can be restored.

An editorial in the Washington Post makes some very good points about the trouble with electing judges.  Focused on the effort to expand Merit Selection to more judges in Maryland, the editorial is good reading for folks in any state where judges are elected — like here in Pennsylvania.

Elections, campaign contributions and the inevitable conflicts of interest they breed have no place in the selection of judges. For judges, drumming up campaign money — often from lawyers who appear before them — and marketing themselves undermines the perception of impartiality and can in practice lead to its corrosion.

These concerns of course become more pronounced as elections become more expensive, candidates raise more money from parties and lawyers who later appear before them in court, and third parties like political parties, corporations and unions unleash their own dollars to get their preferred candidates elected.

We expect judges to act differently from other public officials — to be faithful to the law without regard to popular opinion, political pressure, or campaign support.   Why, then, do we continue to use the same expensive, divisive, partisan electoral process to choose these very different officials?  The Washington Post offers a fine reason to stop doing so:

Judges are not — and should never be confused with — politicians. Insulating those who serve on the bench from the potentially corrosive influence of money and politics would help to avert cases of mistaken identity.

Merit Selection offers a fine way to avoid such confusion.  If we stop electing appellate court judges, cases of mistaken identity may still come before our courts but at least will no longer involve our judges.

The Wednesday front page of the Wall Street Journal featured a story on plaintiffs’ law firms making campaign contributions to political candidates with the intent of securing post-election government business. Here’s how it works: firms (including certain PA firms) give large amounts of money to state and local political candidates. If elected, those public officials tap those firms to represent state and local pension funds in shareholder class-action lawsuits. It’s all legal, but many in the legal world, including former Clinton administration Justice Department official Robert Litan, feel it smacks of “pay-to-play” political bargaining and creates an appearance of impropriety. Litan, now at the Brookings Institution said,

It shouldn’t be the case that plaintiffs’ lawyers should make contributions to public officials and turn around and get legal business from them. You want the best lawyer, not the one with the biggest campaign checkbook.

Many lawyers echo this sentiment. Said one D.C. partner, “There are certain places where, to be in the game, you have to donate…[but] we want to be chosen on merit, not because we contributed money.”

In Pennsylvania, where judges are chosen in contested partisan elections, a similar form of self-interested back-scratching takes place. Judicial candidates receive campaign contributions from (among others) lawyers and law firms—the same parties that are likely to come before that judge if he or she is elected. The result—real or perceived—is the diminishment of impartiality in our courtrooms.

The American Bar Association suggests that firms that have made campaign contributions should not accept “government assignments.” If this is the case, what then of Pennsylvania’s own practices? When judges have received money from litigants, it fosters doubt that he or she will be able to make a fair decision. 

Pennsylvanians cannot be fully confident in their judges unless money is taken out of the judicial selection process. The best way to accomplish this is to do away with judicial elections altogether in lieu of a merit selection process. The WSJ has highlighted the national problem of lawyer/law firm campaign donations. Pennsylvania should take note of how this issue affects our own system, and reevaluate the way in which our judges reach the bench.

In an editorial in the Times Union (upstate New York), Abbe Gluck and Victor Kovner, members of the Board of New York’s Fund for Modern Courts argue that the U.S. Supreme Court’s decision in Citizens United should cause states to seriously consider replacing judicial elections with Merit Selection.  They write that opening the doors to greater financial participation in judicial elections by unions and corporations

[P]lainly jeopardizes the independence of much of our state judiciary. Plainly, the sense that judges may be beholden to financial donors — whether actual or even just perceived — undermines public confidence in our courts.

We share this concern and know that we are not alone in thinking that public perception is critical — in fact, when it comes to the courts, perception is basically reality.

The writers go on to explain:

Apart from any restraints on corporate contributions that may be adopted by Congress, it is up to individual states to close the gaping hole the court opened, and amend their state constitutions to end judicial elections. Whatever limits the Citizens United majority held that the federal Constitution imposes on corporate expenditures in judicial elections, nothing in the decision limits state governments from eliminating those elections in the first place.

This is a critical point.  The people have the right to choose the best way to select judges.  Nothing requires judicial elections.  As Justice O’Connor pointed out during the Georgetown Law-Aspen Institute Conference last week, our Founding Fathers placed great value on an independent judiciary and chose not to elect federal changes.  At that time, most states did not elect judges either.

The article concludes with an interesting note about Justice O’Connor and her unique insights into the issue of judicial selection: “It is no small detail that she is the only living U.S. Supreme Court justice who also has served as an elected state court judge.”  Justice O’Connor knows what it means to an elected judge, and she is urging states to reject judicial elections. Pennsylvanians should pay attention.