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.

Late last week, Governor Rendell nominated a new slate to fill interim vacancies on Pennsylvania’s appellate courts. From early reports, it seems likely that the new slate — Philadelphia Common Pleas Court Judge Jane Cutler Greenspan for the Supreme Court, Northampton County President Judge Robert A. Freedberg and McKean County President Judge John M. Cleland for Superior Court, and Philadelphia lawyer Johnny J. Butler for Comonwealth Court — will be confirmed in the near future. This follows months of political wrangling and the Senate’s rejection of the Governor’s first slate of nominees.

PMC/PMCAction Executive Director Lynn Marks warns: “This interim appointment process should not be confused with what is known as a merit selection system just because both require nomination by the Governor and Senate confirmation. . . . They are both very different and the jockeying we have seen for the last few months is another example of why we should change the way we appoint appellate judges.”

In the aftermath of a fundraising record-setting election and mulitiple recusals by a new Justice seeking to avoid repeating earlier mistakes, Wisconsin is worried about the rising price of judicial elections. As former Supreme Court Justice Janine Geske explained, “the increasing amounts of money spent on campaigns that get more bitter every year is likely to hurt the court’s image.”

This is precisely our concern in Pennsylvania. Public perception is very important. Costly judicial elections do not generate confidence in the courts; instead they lead to decreased trust in the impartiality and fairness of the courts.

In his Philadelphia Daily News column, John Baer laments the lack of legislative action on various reform proposals. Baer notes that some reform measures passed, such as the Open Records law, but argues that “these merely bring Pennsylvania a few of the basics of a decent democracy. Efforts at real reform lie dying.”

Baer is correct. We’re approaching the summer recess with many issues still in a holding pattern. Several of these issues require constitutional amendments, which must be passed before the summer recess in order to have enough time for the constitutionally-mandated publication to occur. This includes both legislative redistricting and Merit Selection of appellate judges.

There’s still time left for real reform. Legislative hearings where different groups could discuss Merit Selection would be an excellent step forward. As the pressure to pass the new budget becomes more urgent, its important that our state legislators know that we want reform to stay on the agenda. Tell them it’s not too late.

Recently, we posted about a Texas Supreme Court decision that was drawing headlines because all nine of the justices had accepted campaign contributions from the winning party. Now, another Texas court decision is making news for similar reasons.

An appeals court in Texas recently overturned a verdict against a large drug company. What’s raising eyebrows is the fact that all three of the judges on the panel have taken campaign donations from law firms representing the victorious defendant.

The reaction of the attorney representing the plaintiff underscores the big-money problem with judicial elections. From the AP story:

[Attorney W. Mark Lanier] said the ruling demonstrates that Texas should not have elected judges, asserting it was “outrageous” that all three judges on the appellate panel took campaign contributions from law firms involved in defending Merck.

Would you want to go to court, knowing that the lawyer or law firm you were up against had given money to the presiding judge or judges? It’s understandable that litigants in such circumstances are concerned that campaign contributions may influence verdicts. The problem is not whether or not there is such an influence; the perception that there could be reduces public confidence in the courts and undermines the judicial process.

It’s time for Pennsylvania to remove campaign money from the judicial equation. We can do this by adopting Merit Selection for the appellate courts.

The problems caused in West Virginia by one company’s contributions to judicial election campaigns continue to plague the state. Now, even though one of the Justices involved lost his reelection bid, there is an effort to have a case involving that contributor reexamined, with a focus on whether another Justice should have recused from the case. Theodore B. Olson, former solicitor general of the United States and private counsel to Ronald Reagan and George W. Bush, will spearhead efforts to get the issue before the United States Supreme Court.

In a press release announcing his involvement with the case, Mr. Olson succinctly sums up the crisis of public confidence created by partisan judicial elections:

The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.

We think the best solution to the problem is to get appellate judges out of the fundraising business altogether. The way to do this is Merit Selection.

When there’s an interim or midterm vacancy on any court in Pennsylvania, it is filled by the Governor making a nomination that is subject to Senate confirmation. Usually for appellate seats, the nominee agrees not to run in the next judicial election for a full term on the court and, therefore, sits on the bench for a short period of time.

This is because the interim appointment process is actually part of the electoral system and is designed to keep either political party from gaining too great an advantage in the next election. Thus, good candidates must promise not to run in the future, lest they get an unfair advantage of running while already a member of an appellate court.

There currently are four vacancies on the appellate courts — 2 on the Supreme Court and one each on the Superior and Commonwealth Courts. This week, the Governor’s nominees for those vacancies were all rejected by the Senate.

According to news reports, the Governor and Senate leaders met to discuss possible candidates for the vacancies, but the ultimate slate of nominees did not include individuals favored by the Senate leadership. As a result, after several months, the Senate voted all four nominees down, without even holding hearings.

So, we’re still left with four vacancies on the appellate courts, and the vacancy on the Supreme Court has the added problem of leaving a six member court that could result in 3-3 decisions. By the time the politicians meet again, new nominations are made, hearings are held and votes are taken, the new judges might have less than a year to serve.

If we had a Merit Selection system in place, these vacancies would be filled through the process involving screening by an independent citizens nominating commission, nomination by the Governor, and confirmation by the Senate. After four years on the bench, the judges would stand before the public in a retention election. Good judges would have the opportunity to stay on the bench for a full ten-year term. Judges the public is dissatisfied with would be removed, and the process would begin again to fill the vacancies.

Merit Selection is designed to get the most qualified judges on the bench in an expedient manner. It’s not designed to position political parties for upcoming elections. That’s why Merit Selection works.