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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.

A June 29th editorial in Jackson, Mississippi’s Clarion-Ledger shows how wealthy interests on either side of a single issue - tort reform - have twisted elections for the state’s Supreme Court. These elections have become a million-dollar sparring ground, where big bank accounts battle to influence judicial policy, and the interests of ordinary citizens and impartial justice are consigned to the bleachers.

Both sides - plaintiffs’ attorneys and the business/medical community - have too much riding on the outcome of cases not to spend big bucks on these campaigns. Left out and ignored, however, are the poor, the voiceless and those who don’t have enough money for political action committees or lobbyists.

When judicial elections become multi-million dollar endeavors, winning a seat on the bench can become a fundraising contest. Smart, fair-minded and experienced candidates are locked out of the system if they can’t generate the level of donations necessary to compete.

Opponents of judicial selection reform like to present themselves as the champions of the people, fighting to preserve the rights of citizens. But often, what they’re really trying to protect is the ability of wealthy campaign donors to decide who makes it to the bench.

Merit Selection of appellate judges short-circuits the influence of big campaign donations. Because candidates are evaluated on their knowledge and experience, Merit Selection gives qualified people who can’t raise gobs of campaign cash a shot at becoming a judge. The appellate bench will be open to people from all backgrounds, and all areas of the state, with knowledge of and respect for the law as the primary criteria for membership.

As the Pioneer Press explains in an editorial about interim judicial appointees, Minnesota judges “usually take office via a gubernatorial appointment, but then must win re-election to stay in office. This makes it a unique office, out of the flow of daily partisan politics but subject to being sucked in at any moment.” The editorial praises the interim appointment system as a better way to select impartial judges:

Judges should be appointed based on merit and not on political calculus. Fairness, experience and integrity are paramount virtues. We love political battling in legislative races but do not want judicial candidates to be cozying up to interest groups, declaring their views on issues pending before them or attacking foes on television. We want Minnesotans to believe that the judge before whom they are appearing is there for the right reasons and will apply the law impartially.

This is a good summary of the goals of Merit Selection advocates. We want an appellate bench staffed by judges who know and respect the law, and who will apply it without regard to popular opinion, political whims, or the pressures of campaign donors.

Merit Selection is the system designed to accomplish this. While no system can entirely remove politics from judicial selection, Merit Selection frees the process from ever-increasing campaign spending and the exaggerated value of political savvy over ability and experience.

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.

With a vacancy on Missouri’s Supreme Court, there is renewed criticism of the Missouri Plan, and talk in some circles about trying to get rid of the Plan and institute judicial elections. Check out Blue Girl’s post on Show Me Progress, which defends Missouri’s Merit Selection system.

Highlighting the benefits of the state’s model Merit Selection system, Blue Girl explains; “One of the most elegant features of the plan is the way it defangs the money monster. Success in partisan elections depends on money, on the financial contributors of donors (a very specious proposition when we are talking about the very concept of Justice)…” Implementing Merit Selection for Pennsylvania’s appellate courts would “defang the growing money monster” here as well.

Using common sense and frank talk, Blue Girl also attacks a frequently heard criticism of Merit Selection:

Detractors say that the process is too reliant on the input of lawyers, but that argument doesn’t get off the starting blocks with me. Who better to make judgments about legal professionals than other legal professionals? [W]hat a nightmare [it] would be if judges owed political favors to certain segments of the electorate, and naturally had a political bias against others. How could you call that justice?

Thanks, Blue Girl for some excellent insights on Merit Selection. We’ll keep our readers posted on the fight to preserve the Missouri Plan.

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.

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 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.

Iowa has used a merit selection process since 1962. Although their process is not perfect, observing judicial elections in sister states has confirmed for Iowans that they made the right choice. A June 11, 2008, editorial in The Des Moines Register addresses the problem of money in judicial elections:

Candidates must raise big money from potential litigants and law firms, and they wage campaigns that may suggest promising to take certain legal positions in exchange for votes.

This summary hits the nail on the head. No party or attorney wants to try her case against opposing counsel who has made monetary contributions to the presiding judge. No ethical judge will base her decision on which attorney’s pockets were deeper, of course. But the appearance of impropriety threatens to sully any elected judge’s reputation and threatens the judiciary’s unbiased, neutral reputation overall.

As the editorial notes, “Politics cannot be completely removed from judicial selection, but politics should not dominate, lest candidates be expected to make promises about how they will rule.”

We agree with this wise assessment. And though we can’t get politics completely out of the process of selecting appellate court judges, we can get the money out. We should follow Iowa’s good example and choose Merit Selection.