judgesonmerit.org

For many years, money has been a big issue in judicial elections.  Who’s giving campaign money to which candidate is already becoming a topic of interest for this fall’s Alabama Supreme Court election.

Campaign finance reports show that political action committees (PACs) driven by pro-business lobbyists account for the vast majority of the money raised for Republican Supreme Court candidate Greg Shaw. A significant percent of the money contributed to the campaign of Lauderdale County District Judge Deborah Bell Paseur, Shaw’s Democratic opponent, has come from law firms, individual attorneys and individuals.

Even the candidates recognize the problems with this system.  Shaw explained that enormous campaign contributions make voters wary: “There is a perception in Alabama that justice is for sale in this state. . . . That strikes at the very heart of the confidence level that Alabamians have in the Supreme Court.”

Large campaign contributions erode the voters’ confidence in their court system in Alabama and other states that hold judicial elections, including Pennsylvania. As Bert Brandenburg of Justice At Stake explained:

[P]olls show the public believes campaign contributions influence the outcome of court opinions. And a poll by the National Center for State Courts showed one in four state judges had the same opinion. “When the insiders feel like money is making a difference,” he said, “that’s pretty scary.”

Eliminating fundraising from judicial selection is a big reason to support adopting a Merit Selection system for Pennsylvania’s appellate courts.

On July 1, Pennsylvanians for Modern Courts issues a press release about the newly confirmed interim appointments to four appellate court vacancies. Executive Director Lynn Marks echoed the sentiment reflected in yesterday’s post: “We must be clear about this. Despite the fact that this process involved nomination by the governor and confirmation by the Senate, it is not the same as Merit Selection.” The press release went on to highlight the differences between the two processes.

The press release concluded: “We hope that disillusionment with the current process and dissatisfaction with the delay that resulted will motivate the public to demand a better way to fill all appellate court vacancies — Merit Selection.”

Governor Rendell’s second slate of nominees to fill interim vacancies on the appellate courts has been confirmed by the state Senate. Philadelphia Court of Common Pleas Judge Jane Cutler Greenspan will serve on the Supreme Court; McKean County President Judge John Cleland and Northampton County President Judge Robert Freedberg will serve on the Superior Court; and Philadelphia lawyer Johnny Butler will serve on the Commonwealth Court. The judges will serve until January 2010, when new judges elected in the fall 2009 elections will be sworn in. The newly confirmed judges each have pledged not to run for full terms in the 2009 elections.

Filling these vacancies was a long and politically contentious process. Although the new judges, like the previous nominees, are highly regarded, the process by which they came to the bench was not Merit Selection. There are two major differences between the current interim appointment process and Merit Selection.

First, the current process does not use an independent nominating commission to evaluate candidates and recommend the most qualified to the Governor. Instead, the Governor, working with legislative leaders, devises a list of candidates.

Second, the current process does not involve a role for the public. Under Merit Selection, after the judge serves for a brief initial term, the public votes in a retention election on whether or not the judge should continue in office. By contrast, in the current interim appointment process, the judges serve only for a short time and pledge not to seek a full term. This is the political deal that must be made to secure confirmation, and it deprives the public of an opportunity to evaluate the judges and of longer service by good judges.

We are pleased that the long vacant appellate court seats will be filled, but we regret that we are still using a political process that is part and parcel of the electoral system to do so.

Wisconsin Supreme Court Chief Justice Shirley Abrahamson is worried about reelection. The vote won’t be held until next year, but in the aftermath of the record-setting 2007 and 2008 Wisconsin judicial elections, she’s already lining up bipartisan support and trying to raise funds. Neatly summing up the problems with judicial elections, her fundraising committee wrote:

“After the last two judicial campaigns, you probably don’t need a sermon on what’s wrong with the way we elected judges in this state, or the embarrassingly small number of people who vote in judicial elections, or the tenor and content of the campaign advertisements sponsored by some organizations… We all know how powerful those 30-second ads can be.”

Judicial elections are getting more expensive everywhere; just think what will happen in Pennsylvania next year.

Even one nasty judicial election would have lasting negative consequences, warns Minnesota’s new chief justice, Eric J. Magnuson.

Our citizens trust our judicial system but what happens when you have even one big, nasty, highly-politicized judicial election concerns me greatly,” he said. ”Perceptions of fairness, equity and access I think will be dramatically undermined if the public’s confidence erodes and it only takes one big campaign to do that.

Magnuson argues that Minnesota needs to switch from judicial elections to a system of “retention elections,” as espoused by the commission headed by former Gov. Al Quie. Under the Quie commission plan, a Merit Selection commission would prepare a list of judges, from which the governor would make his appointments. Ultimately, after an initial term in office, the judges would stand before the public in retention elections and it is the voters who have the final say whether to keep or to fire the appointed judge.

If these changes aren’t made, Magnuson predicts that Minnesota will have to endure what Wisconsin suffered last month.

Millions of dollars were spent by special interest groups on ads attacking the candidates as freeing criminals or engaging in political cronyism,” Magnuson said. ”Well-heeled special interests attempting to manipulate the judicial process are no longer the stuff of fictional thrillers written by John Grisham. It’s reality. It’s reality that’s right next door.

It’s also becoming a reality in Pennsylvania, as elections become more and more expensive and attract money from out-of-state special interest groups.

Merit Selection of judges in Tennessee involves a 3-part system of Merit Selection, judicial performance evaluation, and retention elections. Judges are nominated for gubernatorial appointment by a 17-member Judicial Selection Commission (14 lawyers and 3 non-lawyer citizens). Appellate judges stand for retention election every 8 years.

The Tennessee Plan has been in place since the early 1970s and is also known as the “Modified Missouri Plan.” It’s “winding down” this year, because the Tennessee legislature failed to reauthorize it, mostly because of allegations of too much secrecy in the meetings of the Judicial Selection Commission.

But the way to address the problems is not to scrap the Tennessee Plan and replace it with elections, says Governor Phil Bredesen — and we agree. Tennessee risks throwing the baby out with the bathwater. As Governor Bredesen suggests, perceived problems of secrecy and alleged “back-room dealing” can be addressed by amending the statute to require additional public meetings of the Commission. As the Governor explains, putting a worse system in place is not the answer:

The issue is that when you have state-wide elections, basically for appellate judges, the only people who care about those are people with very narrow special interests. They’re expensive elections because they’re state-wide, and I just think you’d have this scramble to have, you know, every interest out there whether it be business or trial lawyers or anybody else trying to elect their judges and we’d have a vastly worse system than we have today.

The problem in Tennessee isn’t secret meetings in smoke-filled rooms. That flimsy accusation is mostly a “smokescreen” itself for the special interests who seek to inject even more politics — and potentially millions of dollars — into Tennessee’s judicial selection system.

The Wisconsin State Journal has an excellent editorial answering readers’ comments about its recent endorsement of Merit Selection. The editorial addresses many of the recurring arguments and myths we hear from opponents of judicial selection reform. For example:

Q. Why do you want to take away our right to elect our justices?

A: A better question is: Why should we use elections, designed to cater to partisan views and to reflect the will of the majority, to select justices who are supposed to be impartial and to protect the rights of the minority?

Think of it this way: Do you believe football fans should vote on who referees Green Bay Packers games? What happens when the Packers play the Bears? Will Chicago fans outvote the Wisconsin faithful?

Or should the National Football League select officials based on league evaluations of their expertise, impartiality and previous performance?

The piece addresses other common Merit misconceptions, including the roll of politics in Merit Selection, and the non-existent conspiracy to end elections for all government officials. It’s a must-read for anyone interested in learning more about Merit Selection.

JudgesOnMerit.org is a project of Pennsylvanians For Modern Courts and PMCAction. We believe that Merit Selection is a better way to choose Pennsylvania’s appellate judges.

Merit Selection provides pathways to the appellate bench for candidates of diverse backgrounds who are experienced lawyers and jurists.  Qualifications and skills are the key factors in determining who reaches the appellate bench in a Merit Selection system.

Merit Selection removes campaign donations from the judicial selection process, allowing appellate judges to be chosen based on their qualifications and experience. By getting judges out of the fundraising business, Merit Selection promises appellate courts free from the perception of potential bias toward campaign contributors.

If you’d like to add your name or organization to the growing list of supporters of Merit Selection in Pennsylvania, we’d love to hear from you. Please fill out & return the Supporter Form, or contact us at info@pmcaction.org.

In a letter to the editor published this weekend in the Philadelphia Inquirer, we call upon the legislature to consider the Merit Selection bills before the summer recess. We understand that changing the way we select appellate judges is a complex issue that needs examination and discussion. We just want the opportunity to have that discussion.

“It’s time we got the chance to show we want something different than the broken electoral system. But first, the legislature must act.” Visit this page to learn about how you can tell the legislature you want a chance to talk about Merit Selection.

Once again, we’re faced with opponents who fail to recognize the inconsistencies in their own positions. In a recent post attacking Merit Selection, Dan Pero of American Courthouse demonstrates that he really prefers a judicial selection system that involves no direct public participation at all.

He’s talking about the federal system, a pure appointment system. The president nominates a judge, who then must be confirmed by the Senate. If confirmed, the judge serves for life. There’s no retention process; the judge never goes before the public in any sort of election or evaluative process.

Under Merit Selection, by contrast, after an initial four year term on the bench, the appellate judge would stand before the public in a retention election. The public would have the ultimate opportunity to determine whether the judge should continue to serve for a full ten-year term. This process is repeated every ten years thereafter (until the judge voluntarily resigns or reaches the mandatory retirement age).

We understand that the President (who nominates) and the Senators (who confirm) are elected representatives of the people and that the people are therefore represented in the federal process. We agree, and point out that this is also true in Merit Selection where the Governor nominates and the Senators confirm. But retention offers a direct role for the public to weigh in on whether the judge should remain on the bench.

So, when you’re talking about democracy and a role for the people, Merit Selection offers more than the federal system.