PMC and PMCAction’s editorial appears in today’s Legal Intelligencer (subscription required), outlining why a change from judicial elections to a merit selection process for Pennsylvania’s selection of appellate court judges is important and why the time to begin the steps to undertake such a change is now.
Executive director Lynn Marks and deputy director Shira Goodman report that judicial elections, fueled largely by donations from law firms, lawyers, businesses, unions and political parties, are becoming increasingly expensive. Pennsylvania just completed its most expensive Supreme Court election to date.
In addition, many of those who contribute to judicial campaigns are likely to later appear in court.
A new study by the nonpartisan, nonprofit American Judicature Society, or AJS, found that in 82 civil cases decided by the Pennsylvania Supreme Court in 2008 and 2009, 60 percent involved a party, lawyer, or law firm that had contributed to the election campaign of at least one of the sitting justices. Moreover, in nearly 32 percent of the cases, one participant (a party, lawyer, or law firm) had contributed to at least four of the six elected justices. (The seventh justice had been appointed to fill an interim vacancy.)
Marks and Goodman note that this leads to the public perception that not all parties will be given an equal opportunity in court.
As a 2009 USA Today /Gallup poll confirmed, the public is very concerned about the potential influence of campaign contributions on judicial decision-making: 89 percent of respondents called the influence of campaign contributions on judges’ rulings “a problem.” More than 90 percent of the 1,027 adults surveyed said judges should not decide cases that involve a campaign contributor.
While public tolerance for this system may be waning, changing the way we select our judges requires changing the state constitution. Marks and Goodman explain,
It is — and should be — difficult to amend the Pennsylvania constitution. Doing so requires passage of an amendment by both houses of the legislature in two successive two-year sessions. Following that, the public votes in a referendum to approve or reject the proposed amendment. This is a lengthy process that affords ample time and opportunity for debate, and concludes with a final vote by the people of the state. The hurdles involved in this process demonstrate that amending the constitution should not be undertaken lightly.
But the process exists for a reason, and is used when the people find that something needs to be changed to improve the functioning of our commonwealth. We believe that our system of electing appellate judges in expensive, divisive, partisan contests is not the best way to ensure that the most qualified, fair, honest and impartial judges reach the appellate bench. A diverse coalition shares this view, and studies demonstrate increasing public concern about the effect of campaign money on judicial decisonmaking. Judicial selection is an issue that is ripe for reconsideration by the people of Pennsylvania.