judgesonmerit.org

An editorial in the Youngstown News (Ohio) calls for a meaningful public dialogue about whether to change to Merit Selection.  Citing the recent New Politics of Judicial Elections report, the editorial observes:

The issue of money and the courts is not new. . . .

But the recent U.S. Supreme Court ruling that threw open the floodgates to corporations and labor unions to contribute to political candidates is a game changer.

Can the public be assured the courts will remain fair and independent when money is flowing like water?

The editorial notes that in the past, Merit Selection has not passed in Ohio, but it argues that changed circumstances demand a new look.  Here is the call to action:

There is no doubt that the current money-based system of filling state supreme court seats has fed public cynicism and distrust of the judicial system. It’s time — again — for an intelligent, apolitical, public discussion.

That sounds like a very good prescription for Pennsylvania as well. We hope Pennsylvanians will have the chance to have such a discussion about Merit Selection of appellate court judges.

An editorial in the Reading Eagle urges that it’s time to give Pennsylvanians the opportunity to vote on Merit Selection.   In a review of the report The New Politics of Judicial Selection, the editorial opens with these key points:

The Issue: A study reveals what we already knew: Judicial elections are becoming more expensive.

Our Opinion: It is time to switch to merit selection of Pennsylvania’s appellate court judges.

The editorial cites the rising costs of judicial elections and the increasing participation of special interests in those campaigns.  It agrees with the Professor James Sample (lead author of the New Politics report) that “‘We’re sort of playing with fire when you’re putting this much money into our courts.”

The editorial then reviews the pending Merit Selection legislation and notes that Governor Rendell and former Governors Ridge, Thornburgh and Schweiker recently joined together to support implementing Merit Selection for Pennsylvania’s appellate court judges.  The closing paragraphs are worth quoting in full:

According to a survey conducted by Pennsylvanians for Modern Courts, 63 percent of the people in the commonwealth supported replacing the current system of electing judges, and 93 percent favored putting the issue to a statewide vote.

Nevertheless, the Legislature has been reluctant to even consider a change, which would take at least two years to implement because it would require a change in the state Constitution.

Why are the 253 members of the Legislature blocking the will of the people?

Despite growing support in the legislature and the dedication of our legislative sponsors, the Merit Selection legislation has not yet reached the floor of either House. We agree with the Reading Eagle that Pennsylvanians shouldn’t have to wait any more.

An editorial in the Scranton Times-Tribune blasts judicial elections and the political money games they have become:

Judges are supposed to represent only the law. Yet in Pennsylvania judicial candidates seek the favor and, increasingly, the money of politically interested individuals and organizations.

It’s not quite clear how a nonpartisan judiciary is supposed to spring from a partisan process.

This is a critical question: how is the public — and how are judges themselves — supposed to believe that judges are different from other elected officials when they get into office the very same way — through hard-fought, expensive partisan elections?  It has become increasingly difficult for the public to believe that judges really are impartial arbiters who treat all comers equally.  And this loss of public confidence weakens our courts.

The Times-Tribune endorses a different way of selecting judges — a system that would combine appointments with retention elections — as the only way to maintain judicial independence.  Merit Selection emphasizes qualifications, skills and experience in selecting judges and gets judges out of the fundraising business.  It is time for change.

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

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.” 

A July 25th What About Clients? post called for an end to judicial elections, declaring, “it’s time for the States to grow up, and adopt systems of merit based appointments.” 

The post pointed out how judicial elections have led to a mischaracterization and perhaps even a negative transformation of the judicial role:  

State judicial systems with popularly-elected judges send two lousy messages: 

 (1) Judges, like mayors and congressmen, have “constituents”.

 (2) Justice, like real estate or widgets, is “for sale”.

In a state like Pennsylvania, the idea of judges having “constituents” would not appear far off base. Judicial candidates in Pennsylvania campaign much like other politicians. Candidates travel around the state meeting with special interest groups and holding fundraising events. They air negative campaign ads intended to smear their opponents, and play up their own regional and ethnic identities. Perhaps most troubling of all, judicial candidates must run on a party ticket. Voters are left to question whether a “Republican Judge” or a “Democrat Judge” would in fact reach different results in applying the rules of law.

Is justice for sale? To say definitively that it is, is to do a great dishonor to the scores of qualified and ethical judges that do serve on the Pennsylvania bench. But it’s not hard to see why the perception of impropriety is there, and question whether money does influence judicial decisionmaking. Judicial elections have become increasingly expensive, and judicial candidates fund their campaigns primarily by donations from potential litigants. In fact, a recent study showed that 60 percent of civil cases before the Pennsylvania Supreme Court involved a litigant, lawyer, or law firm that had previously contributed to the election campaign of at least one of the seated justices. In 32 percent of cases, an involved party had contributed to at least four of the six elected justices’ campaigns. How can a member of the public, or even a lawyer, feel confident that he or she is getting a fair bite of the apple knowing that the opposing side has given money to the judge?   

Judges should not have constituents. Justice should not be for sale. Yet judicial elections paint this picture. We agree with What About Clients?: it is time for Pennsylvania to “grow up” and adopt Merit Selection.

In an op-ed in the Philadelphia Inquirer, Drew F. Cohen argues that Pennsylvania must change the way we pick judges, and he offers an unlikely  model:  Iraq.  Cohen points to the issues that concerned the U.S. State Department when helping to form the Iraqi judiciary: “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylvania.”

We need not look so far away for a better judicial selection model.  Many states have been using Merit Selection for years to ensure a fair, qualified, impartial judiciary.  But Cohen’s comparison is certainly interesting.  In Iraq the High Judicial Council, an independent body, vets and appoints potential judges.  Once selected, the justices get a one-year probationary period.  If they pass a comprehensive performance review at the end of that year, they can be confirmed until the mandatory retirement age of 63.  Cohen compares this to the Merit Selection legislation pending in Harrisburg:  A 14-member citizens nominating commission would evaluate candidates and recommend the most highly qualified to the governor.  The governor would nominate from this list, and the nominee would be subject to Senate confirmation. If confirmed, the judge would serve a four-year term before standing for retention where Pennsylvanians would vote on whether the judge should serve a ten-year term.

Cohen notes that electing judges — and modern judicial elections in particular — don’t fit with our ideals of what courts and judges should be:

When the Declaration of Independence was signed on Chestnut Street, no state had seriously contemplated popular judicial elections. . . . Modern judicial elections are a far cry from the unbiased, dispassionate races originally envisioned by their supporters. Pennsylvanians are exposed to judicial campaigns replete with vitriolic attack ads, parasitic special-interest groups, and seven-figure fund-raising efforts, tarnishing the robes ultimately donned by the victors.

It seems Iraq has realized the special role judges play in a democracy:  judges must be faithful to the law, not to any particular constituency or campaign supporter. People must be confident that when they come to the courts for justice, the judges will be fair and impartial.
Cohen closes with this call to action:  “With Iraq’s judiciary leaving Pennsylvania’s in the rubble of yesteryear, it’s time for Harrisburg to make merit selection a reality.”

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.

Last Friday the New York Times ran an editorial written by retired U.S. Supreme Court Justice Sandra Day O’Connor, extolling the advantages of merit selection over judicial elections for state judges.  O’Connor writes that while the lifetime appointment feature of the federal system leaves citizens with little redress against an errant judge, and judicial elections make judges too vulnerable to the ever-shifting winds of majority opinion, a merit selection system provides for a delicate balance between the two. The combination of the nonpartisan citizens nominating commission and a later yes/no retention vote for a sitting judge effectively “protects the impartiality of the judiciary without sacrificing accountability.”

O’Connor writes,

State courts resolve the most important legal matters in our lives, including child custody cases, settlement of estates, business-contract disputes, traffic offenses, drunken-driving charges, most criminal offenses and most foreclosures. More than 100 million cases are filed in state courts each year.

When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.

In Pennsylvania, such concerns may arise more often than not. A recent study showed that in 2008-09, over sixty percent of the cases before the PA Supreme Court involved a litigant, lawyer, or law firm that had previously donated to at least one justice on the bench.

And as the cost of judicial campaigns continues to rise to stratospheric heights, these donations are crucial to a prospective judge’s campaign:

This year, 16 states will hold contested elections for seats on their highest courts, and candidates will raise and spend millions of dollars for their campaigns. In 2008 alone, nearly $20 million was spent on TV advertising in contested elections for 26 state supreme court seats.

Again, Pennsylvanians can relate. The cost of the 2009 Supreme Court election between now Justice Joan Orie Melvin and Superior Court Judge Jack Panella reached $4.7 million.

There is legislation pending in Harrisburg that would enable voters to decide for themselves how they would like their state appellate judges to be selected. Pennsylvanians should be afforded the opportunity to choose merit.