judgesonmerit.org

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.

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.” 

Speaking to the Utah State Bar on Saturday, U.S. Supreme Court Justice Clarence Thomas said it “could be a problem” to have judges selected through a political process.

But a “political process” is precisely what is in place for the state of Pennsylvania. Unlike the federal appointment system, or one of the various merit selection methods employed by other states, Pennsylvania chooses all of its judges in hotly contested partisan elections in which candidates are forced to raise money from potential litigants.

Justice Thomas is not the first Supreme Court justice to condemn the politicization of the judiciary. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O’Connor have both spoken out forcefully against the practice of judicial elections.

In March, Justice Ginsburg told a crowd at the National Association Meeting for Women Judges that given the opportunity, she would abolish judicial elections. “If there’s reform I would make, it would be that.”

Justice O’Connor has been outspoken as well, decrying the high price tag on judicial elections and the subsequent flow of political dollars into our state courts.

This is what she had to say about Pennsylvania:

Right now, Pennsylvanians are being shortchanged by the way their judges are chosen.  Judges running for election have to raise campaign contributions from individuals and organizations that appear before them in court.  In fact, the average cost to run for a state Supreme Court seat is staggering – reaching into the millions of dollars. 

Two things are true: (1) elections are inherently political and (2) judges are intended to operate outside of the political sphere. Yet we have judicial elections. This obvious and unfortunate mismatching exists to the detriment of Pennsylvania’s court users. It may not be possible to truly eradicate politics from any system. But merit selection provides a significant and undeniable step in that direction.

Friday’s Wisconsin State Journal editorial asks the question,

Shouldn’t a Supreme Court candidate’s legal skill and fairness be more important than ability to raise campaign money and win partisan support?

The answer seems clear. Yet, in the wake of the “Gableman affair,” in which the state Supreme Court deadlocked along party lines over a complaint accusing Justice Michael Gableman of lying about an opponent in a campaign ad, Wisconsinites are realizing that “legal skill and fairness” may be taking a back seat due to the state’s practice of electing its judges.

The increasingly partisan nature of Supreme Court elections is rapidly erasing the line that once insulated the judicial branch of government from the partisan politics of the legislative and executive branches.

The “Gableman affair” has been characterized as a tipping point.

From the campaign to the ethics case, politics shaped a process that should have been shaped by the law.

But there may be a silver lining. Many are now second-guessing the soundness of judicial elections. The Wisconsin State Journal, along with the Beloit Daily News and Milwaukee Journal Sentinel, has advocated for replacing this politically driven process with a system of merit selection. Merit Selection, in which candidates are evaluated based on their qualifications by a nonpartisan commission, would provide for greater transparency in the judicial selection process and ensure that the most fair and candidates reach the bench.

The editorial closes with an answer to its own question.

Wisconsin should restore public trust in the Supreme Court by shifting to merit selection of justices.

During his campaign for the Wisconsin Supreme Court, Justice Michael Gableman ran television ads that were misleading at best and ethically suspect at worst. In response to an ethics complaint against the justice, the remaining members of the state Supreme Court split 3-3 on whether Gableman should be disciplined.

The case has the Wisconsin State Journal asking why the state “continues to subject its top judges to ugly, money-fueled, increasingly partisan campaigns that turn them into the worst of politicians?”

The editorial explains how judicial elections have failed Wisconsin:

Our judges in Wisconsin – especially those on our highest court – are supposed to be independent and impartial. They’re supposed to be above mud-slinging politics.

But elections have plunged them into the mud pit where they raise huge amounts of money – including from individuals and groups who come before the court, setting up conflicts of interest.

Reform initiatives are unlikely to provide an answer:

Efforts to try to limit the money spent on judicial elections may be noble. But those efforts have failed because the nation’s high court has determined that money is speech, protected by the First Amendment.

The paper suggests that Wisconsin change the way it selects judges from elections to a merit selection system, a path that roughly half the states in this country have already taken.

It would restore trust in and honor for our state’s highest court.

Governor Ed Rendell, former governors Tom Ridge, Richard Thornburgh and Mark Schweiker, Senator Jane Earll, and Representative Matt Smith were joined in Harrisburg today by PMC, PMCAction, Justice At Stake and the Committee for Economic Development to unveil a poll that shows an overwhelming majority of Pennsylvanians – 93 percent – want the opportunity to vote on whether the state should change the way we select appellate court judges.  Joining this bipartisan group of leaders calling for reform were representatives of many groups that comprise the Pennsylvania Merit Selection coalition, including the League of Women Voters of PA, Common Cause, the Pennsylvania Bar Association, Pennsylvania Manufacturers’ Association, the Philadelphia Council of Clergy, the Black Clergy of Philadelphia and Vicinity, the ACLU, the Hispanic Chamber of Commerce of Central PA, and the Pennsylvania Business Council.

The poll — conducted for PMC, PMCAction, Justice At Stake, Committee for Economic Development and the American Judicature Society — gauged Pennsylvanians’ obvious frustration with the judicial system: 53 percent of respondents believe the electoral system is broken, 73 percent  say the most qualified candidates do not win judicial elections, and 76 percent believe campaign contributions influence judicial decision-making.

The press conference showcased the wide breadth of the bipartisan coalition pushing for the change. Here are a few thoughts from some of the speakers.

Lynn A. Marks, Executive Director of PMC and PMCAction said:

The fact that 93 percent of Pennsylvanians want the chance to decide the best way to select their state’s appellate court judges is a resounding call for the legislature to take the first steps to bring this issue to the people.

Governor Ed Rendell said:

Merit selection is a bipartisan issue, and a long overdue reform. There are many reasons why Pennsylvania needs to make this change, and the bottom line is that if we embrace merit selection, we will get the most qualified, fair and impartial judges to serve our residents.

In a statement, retired U.S. Supreme Court Justice Sandra Day O’Connor said:

Right now, Pennsylvanians are being shortchanged by the way their judges are chosen. Judges running for election have to raise campaign contributions from individuals and organizations that appear before them in court. In fact, the average cost to run for a state Supreme Court seat is staggering – reaching into the millions of dollars. I applaud Pennsylvania’s current effort to change its system to protect the impartiality of the judiciary without sacrificing accountability to its voters.

Our press release about the  poll and the press conference is available here. The Pennsylvania Cable Network will be replaying the press conference several times — a schedule is available here.

In today’s political climate one may be hard-pressed to name many issues that truly unite both sides of the aisle. Merit selection is one of these rare birds. PMC has long been part of a coalition of diverse business, legal, community, civic, and religious groups, as well as individuals, that support changing the way Pennsylvanians select their state appellate bench from judicial elections to merit selection. Now, a new poll conducted for PMC shows that support is even broader across the state and does not hew to traditional party lines.

Need further persuasion? Take a look at the guest lineup for tomorrow’s press conference—a bipartisan coterie of players from all the branches of government:

The Governors: Governor Ed Rendell (D), a long-time proponent of merit, will be speaking, as well as former Governor Mark Schweiker (R). Former Governors Tom Ridge (R) and Dick Thornburgh (R) will be available via conference call.

The Legislators: Senator Jane Earll (R-Erie) and Representative Matt Smith (D-Allegheny), sponsors of the merit bills in their respective houses will be in attendance to promote the proposal.

The Judiciary: While unable to attend in person, retired United Stated Supreme Court Justice Sandra Day O’Connor has issued a statement applauding Pennsylvania for taking the necessary steps towards adopting merit selection for the state.

The Watchdogs: Lynn Marks, executive director of PMC and PMCAction will explain why merit is such a crucial judicial reform.  Representatives from our national partners Justice at Stake and the Committee for Economic Development will also be on hand to answer any questions about the poll.

The Coalition: Also showing their support will be representatives from the Pennsylvania Bar Association, Common Cause, ACLU of Pennsylvania, Black Clergy of Philadelphia and Vicinity, Philadelphia Council of Clergy, Pennsylvania Manufacturers Association, Hispanic Chamber of Commerce of Central Pennsylvania, and the League of Women Voters.

An issue with such unique backing deserves equally unique consideration by the citizens of this commonwealth. Pennsylvanians have already voiced their views on merit via the poll; now they must be allowed to do so at the ballot box.

For more information on tomorrow’s press conference, see our media advisory here.

Pennsylvanians for Modern Courts and PMCAction will hold a press conference in Harrisburg at 12:30 p.m. on Wednesday June 9 to release the results of a statewide poll that indicate Pennsylvanians’ strong support for Merit Selection of appellate court judges (the judges on the statewide Supreme, Superior and Commonwealth courts).

The poll found, among other things, that 62 percent of respondents favor replacing the current system with Merit Selection.  Read the Media Advisory here.

The press conference will feature Governor Ed Rendell, a written statement from retired United States Supreme Court Justice Sandra Day O’Connor, Senator Jane Earll, sponsor of SB 860, Representative Matt Smith, sponsor of HB 1621, former Governor Tom Ridge via telephone, former Governor Mark Schweiker,  Lynn Marks, executive director of PMC & PMCAction, and representatives of coalition partners including Justice At Stake and the Committee for Economic Development.

Pennsylvania isn’t the only state that’s realizing the need for merit based selection of appellate judges rather than partisan races fueled by special interest money.

A Minnesota bill on the same issue went further than ever before in the state legislature but ultimately came up short a few weeks before the end of the session.

The bill would have placed a question on a fall ballot asking voters whether to amend the state constitution to make the switch to merit selection.

Under the Minnesota proposal, the governor would appoint judges to fill open seats, and voters would decide whether or not to retain the judge. An independent judicial-performance evaluation commission would also be created to evaluate judges’ performances.

Despite the outcome, Minnesota proponents of merit selection pledge to continue working for reform.

Nevada is even closer to selecting judges on merit. In November Nevada voters will decide the issue after the state legislature approved the proposal’s wording last month.

Both of these states are on the right track. Fair trials require impartial judges, which is why merit selection, not partisan elections will result in a more diverse and qualified judiciary. With the rising costs of judicial elections and the potential large donors may appear in front of those same judges in court the time to change to switch to merit selection is now.

A forthcoming law review article by James Sample of Hofstra Law School describes how last year’s U.S. Supreme Court decision in Caperton v. Massey has sparked a wave of judicial reform across the county.

Caperton involved a West Virginia Supreme Court justice who refused to step down from ruling on a case despite the fact that one of the litigants had spent $3 million to help that justice get re-elected. The U.S. Supreme Court ruled that that given the “serious risk of actual bias,” the justice was constitutionally required to step down. The Court went further in holding that the mere appearance of impropriety may be enough to command recusal in certain situations.

Numerous states have been working with new-found ardor to get the influence of money out of their courtrooms. The best way to achieve this is to eliminate the need for judges to raise money at all by abolishing state judicial elections. Sample writes in “Court Reform Enters the Post-Caperton Era,”

…Caperton is rejuvenating efforts in some states to at least reconsider whether, given the spiraling costs of judicial elections and the commensurate conflicts created by expensive campaigns, carefully crafted appointive systems might better serve the public.

One such appointive system—Merit Selection—is currently being considered in the Pennsylvania legislature. Given the rising costs of judicial elections in Pennsylvania, the risk of creating a Caperton-like situation is all but inevitable. Pennsylvania should be afforded the opportunity to decide whether to do away with judicial elections at the appellate level.