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

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.

Governor Rendell just finished delivering his 2010-2011 budget address before the Pennsylvania General Assembly. In discussing his reform priorities, the Governor said:

[O]ur courts are faced with a serious credibility crisis. After all that has recently occurred, the time has clearly come to move a merit selection amendment through both chambers because it will have widespread public support and because it’s the right thing to do. These are important steps forward on the road to reform. Let’s enact the laws that restrict the ability of special interests to unduly impact our policies and manipulate our process. Let’s put Pennsylvanians first.

We hope the members of the House and Senate recognize that the time is NOW. We are in the wake of the very recent U.S. Supreme Court decision in Citizens United v. FEC which will undoubtedly give special interests even more ability to ensure their preferred judges are elected.

It is time to put Pennsylvanians first, as the Governor said, and select judges in a non-partisan, merit-based manner rather than in the expensive partisan elections we currently have which virtually ensure that judges hear cases from parties that have contributed to them directly.

PMC Deputy Director Shira Goodman attended this week’s Georgetown Law-Aspen Institute conference focused on selecting judges in the wake of the Caperton and Citizens United decisions. Goodman reports that there were two clear messages: First, judicial elections are about to become even more expensive, partisan and divisive. The second and more optimistic message is that now is the time for judicial selection reform.

Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

Dave Davies of the Philadelphia Daily News wrote yesterday in response to Pennsylvanians for Modern Courts’ press release on the huge amount of money spent by the candidates and third-parties on this year’s PA Supreme Court race. Data from the current year is still incomplete, yet PMC reports that at least $4.5 million has already been spent.

In recent years, Pennsylvania has been leading the nation in money spent on judicial elections. These extreme figures highlight the need to switch to a merit-based selection process. PMC’s Lynn Marks told Davies of the inherent dangers of judicial election fundraising:

These candidates have to raise enormous amounts of money, and it comes from groups that are often in state court – lawyers, businesses, unions and political committees, and also the state political parties. If you think of yourself in court, you don’t want to be sitting there wondering whether your opponent, or your opponent’s attorney, made a large contribution to the judge.”

A procedural switch from elections to merit selection requires a change in the state constitution. There is current legislation pending in both the House and Senate to achieve such an amendment.

Hopefully the data from the 2009 Supreme Court race will make both voters and their representatives take note and reconsider our current system of choosing judges. Justice is not a commodity. No one should ever worry that it might be for sale.

Bills:

• House Bill 1619 and House Bill 1621

News and Press:

• Philadelphia Inquirer: House urged to end election of Pa. judges, Amy Worden. Lynn Marks quoted.
• WHYY: Pa. having doubts on wisdom of electing judges, Scott Detrow. Robert Heim, PMC Chairman, quoted.
• PR Newswire: Governor Rendell Endorses Judicial Merit Selection Reform Bill
• Capitolwire (Subscription Required): House committee weighs benefits of appointing appellate judges, Laura Olson. Lynn Marks quoted.

Blogs and Opinions:

• Gavel Grab: Merit Selection Urged at Pa. Hearing; JAS Submits Pa. Testimony on Merit Selection
• It’s Our Money Blog/ Philly.com: Rendell pushes for merit selection of judges

And of course, read our take on the hearing here.

We will post more comprehensive coverage of the hearing, including transcripts of testimonies, within the next few days.

On Monday, the Courts Subcommittee of the House Judiciary Committee held a hearing on the pending Merit Selection legislation.  Representative Josh Shapiro (D, Montgomery) chaired the hearing in Subcommittee Chair Don Walko’s (D, Allegheny) absence. Also attending were Minority Subcommittee Chair Tom Creighton (R, Lancaster), bill sponsor Matt Smith (D, Allegheny), Mike Vereb (R, Montgomery), Joseph Petrarca (D, Armstrong), Kathy Manderino (D, Philadelphia and Montgomery), Kate Harper (R, Montgomery), Glen Grell (R, Cumberland) and Deberah Kula (D, Fayette and Westmoreland).

The hearing was very informative.  Nearly all who testified — both those who supported the legislation and those who opposed it in some way — agreed that there are problems with the current electoral system, notably the role of money in the process.  This consensus is significant and reflects the public’s belief in the corrupting influence of money in the process.

Testifying on behalf of the legislation were PMC and PMCAction’s Bob Heim, Lynn Marks and Shira Goodman; Dave Taylor of the Pennsylvania Manufacturer’s Association; and Charlotte Glauser of the League of Women Voters of PA.  J. Whyatt Mondesire of the NAACP was scheduled to present testimony in support of Merit Selection but was unable to attend.

In the next few days, we will upload copies of the testimony presented at the hearing, but we offer a few highlights.  Bob Heim, Chair of PMC, focused on the need for reform and the importance of getting judges out of the fundraising business. He highlighted the public’s growing concern that money can influence judicial decisionmaking and called on the legislature to allow Pennsylvanians to decide whether to change the way we select appellate court judges.

Charlotte Glauser of the League of Women Voters of PA explained the League’s long standing support for Merit Selection, urging “Passage of these bills will do much to restore the public image of independence of Pennsylvania’s appellate court system.”

PMA’s Dave Taylor explained that Merit Selection would “improve the professionalism, integrity, and independence of the judicial branch of goverment.” Taylor explained:

By combining elements of elective and appointive systems for nominating our appellate court judges, Pennsylvania can uphold the professionalism of the courts and protect our jurists from the conflicts of interest that inevitably arise from political fundraising and campaigning.

Testifying in opposition were Tom Foley III of the Pennsylvania Association for Justice (formerly the Pennsylvania Association of Trial Lawyers), Professor Michael Dimino of Widener University, and Rick Bloomingdale, Secretary Treasuer of the AFL-CIO.  Professor Dimino actually endorsed a Merit Selection for the Superior and Commonwealth Courts and even for the trial level courts, but argued against Merit Selection for the Supreme Court.

Rick Bloomingdale of the AFL-CIO noted the organization’s current opposition to the legislation, but expressed a willingness to support an amended version of a Merit Selection plan. This is significant, and we are hopeful that as the Committee considers the bill, we can work with our traditional partners and with groups such as the AFL-CIO to design the best system of judicial selection for the Pennsylvania appellate courts.

In a publicly released letter to bill sponsor Matt Smith, Governor Rendell again expressed his strong support for Merit Selection:

I have said on many occasions that our system of electing appellate judges makes no sense. It is no secret that there is great concern in Pennsylvania about the role of money in judicial elections. Current law could allow judicial candidates to accept indirect contributions from lawyers and special interest groups that may eventually have to argue a case before that judicial candidate. It is no wonder that Pennsylvanians have been losing faith in our courts and our judges.

PMC and PMCAction are grateful to the House Judiciary Committee and its Subcommittee on Courts for the opportunity to present public testimony at yesterday’s hearing. We thank the bill sponsors, Representatives Smith and Will Gabig (R, Cumberland), for their leadership as well as all the representatives who attended the hearing.  We look forward to working together to achieve a better way for Pennsylvanians to select appellate court judges.

On Monday December 7, the Courts Subcommittee of the House Judiciary Committee is holding a hearing on the pending Merit Selection legislation.  The hearing will be at 10:00 am in Room G50, Irvis Office, Capitol Building.

Testifying in support of implementing a Merit Selection system for the Pennsylvania appellate courts will be Robert Heim, Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts and PMCAction, J. Whyatt Mondesire of the NAACP, Dave Taylor of the Pennsylvania Manufacturers’ Association and Charlotte Glauser of the League of Women Voters of PA.

The hearing is the first step in the process of moving forward with legislation to amend the constitution.  We hope this process will allow Pennsylvanians to have an important dialogue about whether we should change the way we select appellate court judges.

We know from polls and surveys and from low voter turn-out that there is great concern about the role of money in judicial elections.  We also know that Pennsylvanians have been losing confidence in our courts and judges.  We believe Merit Selection — which focuses on getting the most qualified, fair and impartial judges on the appellate courts and gets judges out of the fundraising business — will be a significant factor in restoring public confidence in our courts.