judgesonmerit.org

Paul Carpenter of the Allentown Morning Call urges Pennsylvania voters to demand reform in the wake of this week’s judicial elections. Carpenter decries the tight control by the two major political parties over the judicial election process.  He also identifies the critical issue of money in judicial elections:

I am. . .  troubled by the main source of funding for virtually all judicial candidates in the two-party system. What sort of judges are we likely to have if they take most of their campaign funding from the very lawyers who plan to argue cases before them?

Carpenter notes that change will only come if the voters get angry and demand it. And he challenges the voters to do so:

If average citizens want to similarly flex muscles to bring reforms. . . they need to get just as angry and be just as vocal as they were in the pay raise scandal. . . .

People need to start demanding a shift to the merit selection of appellate judges, vowing to vote against any legislator who fails to work toward that goal.

Legislation is pending in both houses of the legislature to implement a Merit Selection system for the three statewide appellate courts.  Clearly, confidence in the current judicial elections system is low, as fewer voters than in past years turned out to vote this week.

Pennsylvanians should make their voices heard. As Carpenter notes, that’s the only way we will achieve much needed reform.

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

Paul Capenter of the Allentown Morning Call devoted yesterday’s column to a recap of the judicial scandals in Luzerne County.  Carpenter has strong words for the Pennsylvania judicial system and the Pennsylvania Supreme Court in particular:

The appellate system is a comedy routine over which presides the Pennsylvania Supreme Court, which, among its other scandals, did everything but back-flips to accommodate the crimes of two Luzerne County judges, who took $2.6 million in payoffs to throw hundreds of juveniles into a commercial juvie jail on flimsy grounds.

Carpenter updates his readers on the continuing investigation in Luzerne County and how various other cases are getting reexamined.  He concludes with a thought about one factor contributing to problems in the judicial system — judicial elections:

Someday, all these exciting episodes will end, probably when Pennsylvania enacts merit selection for appellate court judges — instead of letting party bosses pick judicial candidates. Then we’ll have to go back to watching Jerry Springer.

John Micek of the Allentown Morning Call and author of the Capitol Ideas blog offers a post-election look at the debate over whether we should continue to elect judges in Pennsylvania. He notes that there is a growing sense that the current election system is not working.

Micek notes that the lack of information available to voters in judicial elections — due to constraints on judicial candidate speech as well as limited coverage of judicial races in the media — creates a situation where results are driven by factors unrelated to qualifications to serve on the bench and voter turn-out is low:

Critics say that combination of factors has made the races the exclusive province of three constituencies: political party insiders, lawyers, and the big business interests who often find themselves in the courtroom.

So instead of the voters picking judicial candidates based on their temperament, experience and qualifications, external factors such as geography, gender and party endorsements can often carry the day.

Tim Potts, leader of Democracy Rising Pa, argues that we need judicial selection reform:

“There’s no question we need to change. The only question is whether it’s going to be to something that’s equally as awful or to the highest quality we can get. . . . We need to have a real discussion and that hasn’t happened for years.”

Merit Selection offers a good solution to the problems Micek identifies.  It focuses on qualifications, reduces or eliminates the role of factors like ballot position, name recognition, political party support and campaigning skill, and gets judges out of the fundraising business.

It’s time for Pennsylvania to tackle the serious issue of how we select appellate court judges.  This requires a great deal of attention and commitment on the part of our leaders and citizens. We hope Pennsylvanians are ready to begin the work needed to address this issue.

Bill White of the Allentown Morning Call, writing a post-election wrap-up, reiterates his belief that Pennsylvania should use Merit Selection to choose appellate court judges.  He reasons that most voters have little or no information to guide them in making decisions about who should sit on the appellate courts and that political party endorsements play too great a role in influencing who reaches the bench.  He concludes:

So I advocate merit selection for our state judges. It wouldn’t remove all the politics, but at least it would ensure we get competent people in there.

This echoes something we’ve long understood: it’s not possible to take all the politics out of a judicial selection system.  But it is possible to reduce the role of party politics and other factors irrelevant to being qualified to serve as a judge — like fundraising ability, ballot position, and county of residence. It is also possible to emphasize qualifications, skill and experience in the selection process.  Merit Selection is the way to accomplish this.

The Allentown Morning Call, analyzing how often local judges end up presiding in cases involving campaign contributors, found that “[o]ut of seven judges examined, only one was found to have no cases involving significant donors.”  This review looked at the parties involved in civil cases, but did not include donations from lawyers or law firms.  The results compelled the following conclusion:

The instances underscore how judicial rules basically leave it up judges to decide whether they should recuse themselves from a case. They also demonstrate how Pennsylvania’s system of electing judges leaves the bench vulnerable to claims of one-sidedness or worse, even though the donations are legal.

The article notes that there is growing public concern across the country that campaign contributions may affect a judge’s ability to rule impartially.  PMC Executive Director Lynn A. Marks summed up the perception problem: ”Think about yourself being in court and sitting and wondering whether your opponent or your opponent’s attorney made a large contribution to a judge.”

Clearly, this is something no one should ever have to worry about.  But an electoral system that requires judges and their campaigns to fundraise promotes such concerns.  It’s time to get judges out of the fundraising business.

In a blog post about the Pennsylvania courts, Allentown Morning Call columnist Bill White notes that our system for selecting appellate court judges doesn’t make any sense.  He had harsh words for the electoral process:

[J]udges are selected by voters who have no clue about their credentials and . . . the best way to ensure election is to accept help from political power brokers. Until we switch to merit selection — still political, but much more likely to produce high-quality judges — or at least regional representation so voters have at least a slight chance of knowing something about the candidates, we’ll be left with eenie-meenie-miney-moe and a lousy state judiciary.

The electoral system is not the best way to select judges — good judges make it to the bench despite the system, not because of it.  Under Merit Selection, qualifications, skill, experience and one’s reputation for honesty and fairness would be the factors emphasized in picking judges.

An editorial in the Allentown Morning Call, inspired by the judicial scandal in Luzerne County, urges Pennsylvania to adopt a Merit Selection system.  The Luzerne scandal, which continues to broaden in scope, involves two state court judges pleading guilty to federal charges related to their allegedly receiving kickbacks for referring juvenile defendants to a particular detention facility.  The case has rocked Luzerne County and the entire state, and the Pennsylvania Supreme Court has taken action to have court operations reviewed and the juvenile cases reexamined.

The editorial lays blame not only at the feet of the judges involved in the scandal, but also argues the state Supreme Court should have intervened earlier.  Observing that redress is difficult, the editorial urges:

[T]here is a long-range reform that holds promise for improving the appellate courts, one that these pages have supported for years: Merit selection, instead of the political election of judges.

An article in the Allentown Morning Call offers a preview of what the upcoming judicial elections will look like. Noting that judicial candidates are limited in what they can tell voters, the article quotes Muhlenberg College political scientist Christopher Borick who explains:

The contests tend to boil down to name recognition, reputation and resume. The most likely candidate to succeed is someone who is well-known and has money and organization behind them.

These are not necessarily the factors that make someone a good judge. PMC Executive Director Lynn A. Marks is also quoted in the article explaining the problems inherent in electing judges:

[T]he state’s system distracts from what the focus should be: weighing qualifications and skills and determining who would be best on the bench.

Marks said she gets calls regularly from people who feel they didn’t get a fair hearing in court because the judge had taken campaign contributions from the other side.

We will be watching and reporting about how much money the judicial candidates are raising and from whom, what the candidates are saying to voters, and how the elections are playing out. Stay tuned.

The Allentown Morning Call reports that a judge in Northampton County is being criticized for failing to reveal that he received campaign contributions from a party involved in a case. The case initially had been assigned to another judge, who recused herself because she had received campaign contributions from one of the parties.  Although the second judge raised other potential conflicts of interest, he did not disclose the campaign contributions and did not recuse.

In Pennsylvania — as in most states — judges are not required to recuse when campaign contributors are involved as parties or lawyers.  That very issue is now before the United States Supreme Court in Caperton v. Massey, which asks whether the Due Process Clause requires recusals in cases involving very signficant campaign donors.

The donations at issue in the Northampton County case are much smaller than in Caperton, but the same concerns are present: can courts maintain actual independence and can the public believe courts are independent when judges preside over cases involving campaign contributors?  We have long believed that the increasingly important role of money in judicial elections is damaging to the independence of the judiciary and the public’s confidence in the fairness of the courts.  The best way to solve this problem is to get judges out of the fundraising business.  Merit Selection can do this.