judgesonmerit.org

Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom.

-Dr. Martin Luther King, Jr.

Today we remember Dr. King’s life and his unfaltering dedication to service in the face of extreme adversity. His memory inspires us to continue to work for change even when the challenges appear great.

We have now created a page devoted to Monday’s Merit Selection hearing before the Courts Subcommittee of the House Judiciary Committee.  On this page, you will find information about the legislation, those who testified at the hearing and links to the testimony submitted by other interested organizations.

The hearing was the first step in the House’s consideration of the legislation. We hope that the process will continue so that Pennsylvanians can weigh in on whether to change the way we select appellate court judges.

Pennsylvanians for Modern Courts broke the news earlier today that the current Supreme Court race has set a new fundraising record. Judge Jack Panella has raised at least $2,350,633 to date. This edges out the previous record set in 2007 by now Justice Seamus McCaffery. See the Press Release here. You can find the candidates’ finance reports on the PA Dept. of State’s Campaign Finance Reporting page (NOTE: Judge Panella’s cycle 5 reports are not yet on the website).

The candidates’ war chests may continue to rise after the election, as they have until the end of the year to raise money for their campaigns. As a point of reference, in the 2007 race, the two winning candidates, Justices McCaffery and Todd, raised over $330,000 and over $650,000, respectively, in the two reporting cycles after the election. Of the two losing candidates, one raised over $340,000, and the other raised just under $100,000.

Wait, did we say partisan judges? Isn’t the very term antithetical to the core principle of independent judges and an independent judiciary? Of course it is. But partisan judges are the necessary outcome of our current judicial election system because they are nominated by parties and run on party labels.

A column by Eric Heyl in today’s Pittsburgh Tribune-Review gives the chronology of the recent spate of “mud-flinging” in the Pennsylvania Supreme Court campaigns.  We think mud is a generous euphemism for what is being spread by supporters of the two candidates.

More importantly, though, the article asks why this contest has taken such a negative turn. The surface answer: “Orie Melvin and Panella are resorting to such tactics because polls indicate they are virtually tied, with a majority of voters still undecided.”  But why are voters undecided? Because,

“Strictly in terms of legal acumen, it matters not a whit which candidate wins. Both Orie Melvin and Panella are experienced jurists who were highly recommended by the state bar association. Presumably, neither would ever confuse torts for tarts and attempt to down a few as an afternoon snack.”

Who ends up on the bench is of great importance to us, because decisions judges make affect all of our lives. But if both judges are equally qualified, then why would this election matter at all? According to the people who are most invested in the outcome, as the article points out, the reason is because:

“Whoever wins Tuesday tips control of the seven-member court in favor of his or her party. Whoever wins gives that party a distinct advantage in the legal battles expected when new legislative district maps are drawn after the 2010 Census.”

We’ve heard it before in the last few weeks, “this is such an important race because it will determine the political balance of the Court in a redistricting year.” It is so important, in fact, that both candidates, directly or indirectly, are flinging so much mud that “the dry cleaning bill is bound to be steep.” And we just accept it.

The incredulity must be creeping in.

When did it become okay to count the number of “Ds” and “Rs” on the bench? We should be trying instead to get the fairest, most qualified, and most impartial judges possible. While partisan elections are a critical component of the legislative and executive branches, we must remember that the judiciary is not a political branch of government. But until we begin selecting our judges and justices based on merit, and stop the circus of campaign fundraising and advertising, the mud-flinging will continue, and the public will get nothing from the process but the perception that its judges are anything but impartial.

Just a few days ago, we reported on a negative banner ad that ran briefly and was sponsored by the Republican Party of PA in support of its judicial candidates. That banner featured a Soviet-style hammer and sickle inside the “O” of Obama. No, the president is not running as a PA judicial candidate – what relevance he has to our state judicial elections is unclear. What is clear is that the campaign between Democrat Jack Panella and Republican Joan Orie Melvin is getting ugly very quickly.

In the introduction to that post, we described the tone of a typical negative television ad – “clichéd black and white low-angle images of the opposing candidate, dramatic fade-ins of damning headlines, and music that would make Alfred Hitchcock proud.” Yesterday, we planned to write about a news report from Pittsburgh’s Channel 4 ABC news covering a TV ad sponsored by Panella’s campaign, which follows the negative campaign playbook almost to a tee: ominous tones, dark backgrounds, and most importantly – questionable statements about the opposing candidate.  The ad, according to the report, “has tough words, but little documentation to back up the attacks.”

That was yesterday. Since then, articles have been streaming in to our news desk about how this race keeps getting uglier, and how attacks, accusations, and negative ads are oozing from both sides. At least here in Philly, where we are all glued to our TV sets, these ads are getting a lot of attention. The gist of the ads getting airtime: Orie Melvin is bad for women; Panella is bad for children.

The Republican Party of Pennsylvania is now airing an ad which blames Panella for failing to stop the cash-for-kids scandal in Luzerne from happening. The ad claims, “Judge Panella turned his back on these children when he and the Judicial Conduct Board received a complaint about the judges.” But as John Baer at the Philadelphia Daily News pointed out, “[It] seems a stretch to lay the collapse of a county system at the feet of a single state judge.” Especially because the U.S. Attorney confirms the conduct board referred the issue to the feds, he explains.

But the poop-flinging is coming from both sides. In addition to the ad discussed in the Channel 4 piece, Panella’s campaign is running another doozy, with a “Warning for women,” that “only Panella will protect women in their healthcare decisions.”

Now, the Republican Party of PA is condemning the Panella ads, and accused him of violating the Pennsylvania Code of Judicial Conduct, while at the same time continuing to lay it on thick about Panella’s position on the Judicial Conduct Board during the Luzerne fiasco. Is this double speak, or just a “we’re bad, but they’re worse” tactic (not unfamiliar to Orie Melvin, who recently condemned  the $1 million Panella received from the trial lawyers while brushing off the $125 thousand her campaign received from the exact same group)?

Today, the Pittsburgh Tribune-Review quoted our own Lynn Marks, executive director of Pennsylvanians for Modern Courts.

“The ads diminish the candidates and the judicial office in the minds of the public,” Marks said. “The reality is, it is very hard to educate the voters about what the courts do and about what candidates do and why they’d be good judges. These ads do not help the voters.”

We’ve met Panella and Orie Melvin, and they both strike us as honorable, decent people. One of them will soon be a justice on our state’s Supreme Court. The editorial boards of the state’s major papers seem to concur, as all noted in their endorsements that either candidate would be a good choice, and that both are highly qualified (except for this paper which refused to endorse any candidate because it is calling for the end to judicial elections). But campaigning brings out the worst in everyone. To quote Mr. Baer again:

So when you see judicial campaigns driven by special-interest-funded ads that stretch credulity . . . ask yourself if there just might be a better way to pick the people who sit on our highest court.

There is a better way. It’s called Merit Selection, and it protects the judiciary from all these negative side effects of campaigns and elections. We think it’s time Pennsylvania comes out of the 19^th century, when our current election system was adopted, and move to a system that doesn’t debase the members of the judiciary by pushing them to stoop so low.

NOTE: JudgesOnMerit, PMC, and PMCAction are non-partisan and our cause is a non-partisan one. We do not support any judicial candidates or political parties, and we are equally critical of all problems with the judicial selection process.

Last week, we wrote about a case currently before a state court panel in Wisconsin involving Michael Gableman, a then-candidate for the state’s Supreme Court who ran an ad against his incumbent opponent. The ad was quite misleading (at best).

According to the National Law Journal, that case may be ultimately headed for the U.S. Supreme Court. In 2007, Washington State’s Supreme Court struck down a state law that prohibited false political ads about opponents as violating the First Amendment protection free speech.  If the Wisconsin Supremes now rule against Gableman’s advertisement, a conflict between the states on an interpretation of the federal constitution will give rise to a basis for Supreme Court review.

Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar’s judicial integrity campaign committee also was “highly critical” of the ad.

“I think the law is eventually going to say that, when you have a judicial election, it’s just the same as any partisan election,” Basting said.

Whichever way Wisconsin rules, the very fact that judicial candidates are mixed up in these types of questions – how low can you go when running for office and stay within your First Amendment rights – highlights the inherent flaw with judicial elections.  Bastings continued in the NLJ article:

“That’s why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges.”

What will it take to convince Pennsylvanians to take a similar hard look?

The Merit Selection hearing scheduled for next week in Pittsburgh has been postponed due to the legislature’s ongoing work on the state budget.  We will post new information as soon as the Courts Subcommittee of the House Judiciary Committee reschedules the hearing.

We reported this morning that the Courts Subcommittee of the House Judiciary Committee will be holding hearings on Merit Selection.  We have just learned that due to the ongoing work on the budget, the Philadelphia hearing (initially scheduled for September 2) will be postponed until October.  At this time, the Pittsburgh hearing is still scheduled for Wednesday September 9 at 10:00 am.  Written testimony may be submitted to the Committee through Rep. Don Walko’s office until September 2:

Hon. Don Walko
121 Irvis Office Building
PO Box 202020
Harrisburg, PA 17120-2020
(717) 787-5470
Fax: (717) 783-0407

Testimony may be submitted electronically care of Louise Koppenheffer (LKoppenheffer@pahouse.net).

We are pleased to report that the Subcommittee on Courts of the House Judiciary Committee will be holding two hearings on the pending legislation to amend the constitution to implement Merit Selection for the appellate courts.  We thank Representative Don Walko, Chairman of the Subcommittee on Courts, for scheduling hearings in Pennsylvania and giving the people an opportunity to discuss this important issue.

The Philadelphia hearing will be Wednesday September 2 at 10:00 am in Courtoom 676 in City Hall.

The Pittsburgh hearing will be held Wednesday September 9 at 10:00 am in Room 330 of the Frick Building, 437 Grant Street.

The hearings are open to the public, and we will offer detailed coverage on our blog, including links to testimony submitted.

The hearings are an important first step in the critical process of allowing the people of Pennsylvania to decide whether to change the way we select appellate court judges.

To help voters prepare for the upcoming judicial primary elections on May 19, Pennsylvanians for Modern Courts, the League of Women Voters of Pennsylvania, and the Harrisburg Area Community College are proud to co-sponsor a forum for the candidates running for the Pennsylvanian Supreme Court.

The three candidates running in the Republican primary — Cheryl Allen, Joan Orie Melvin and Paul Panepinto — and Democrat Jack Panella will attend the forum which will be held Wednesday May 6 at 6:30 pm at the Harrisburg Area Community College campus in Harrisburg, 1 HACC Drive,  Wildwood Conference Center.   For directions, visit  http://www.hacc.edu/wildwood/upload/wwccdirections2008.pdf.
Due to live television coverage on PCN, the program will begin promptly at 6:30, so audience members should arrive no later than 6:10 pm. We expect an informative dialogue with the candidates and our panelists, and anticipate time for audience questions as well.

For more information contact PMC at (215) 569-1150; the League of Women Voters at (717) 234-1576, or HAAC .  To learn more about the upcoming judicial elections, visit PMC’s Current Election page.