judgesonmerit.org

For many years, money has been a big issue in judicial elections.  Who’s giving campaign money to which candidate is already becoming a topic of interest for this fall’s Alabama Supreme Court election.

Campaign finance reports show that political action committees (PACs) driven by pro-business lobbyists account for the vast majority of the money raised for Republican Supreme Court candidate Greg Shaw. A significant percent of the money contributed to the campaign of Lauderdale County District Judge Deborah Bell Paseur, Shaw’s Democratic opponent, has come from law firms, individual attorneys and individuals.

Even the candidates recognize the problems with this system.  Shaw explained that enormous campaign contributions make voters wary: “There is a perception in Alabama that justice is for sale in this state. . . . That strikes at the very heart of the confidence level that Alabamians have in the Supreme Court.”

Large campaign contributions erode the voters’ confidence in their court system in Alabama and other states that hold judicial elections, including Pennsylvania. As Bert Brandenburg of Justice At Stake explained:

[P]olls show the public believes campaign contributions influence the outcome of court opinions. And a poll by the National Center for State Courts showed one in four state judges had the same opinion. “When the insiders feel like money is making a difference,” he said, “that’s pretty scary.”

Eliminating fundraising from judicial selection is a big reason to support adopting a Merit Selection system for Pennsylvania’s appellate courts.

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.

Merit Selection of judges in Tennessee involves a 3-part system of Merit Selection, judicial performance evaluation, and retention elections. Judges are nominated for gubernatorial appointment by a 17-member Judicial Selection Commission (14 lawyers and 3 non-lawyer citizens). Appellate judges stand for retention election every 8 years.

The Tennessee Plan has been in place since the early 1970s and is also known as the “Modified Missouri Plan.” It’s “winding down” this year, because the Tennessee legislature failed to reauthorize it, mostly because of allegations of too much secrecy in the meetings of the Judicial Selection Commission.

But the way to address the problems is not to scrap the Tennessee Plan and replace it with elections, says Governor Phil Bredesen — and we agree. Tennessee risks throwing the baby out with the bathwater. As Governor Bredesen suggests, perceived problems of secrecy and alleged “back-room dealing” can be addressed by amending the statute to require additional public meetings of the Commission. As the Governor explains, putting a worse system in place is not the answer:

The issue is that when you have state-wide elections, basically for appellate judges, the only people who care about those are people with very narrow special interests. They’re expensive elections because they’re state-wide, and I just think you’d have this scramble to have, you know, every interest out there whether it be business or trial lawyers or anybody else trying to elect their judges and we’d have a vastly worse system than we have today.

The problem in Tennessee isn’t secret meetings in smoke-filled rooms. That flimsy accusation is mostly a “smokescreen” itself for the special interests who seek to inject even more politics — and potentially millions of dollars — into Tennessee’s judicial selection system.

In an opinion piece in Madison’s Capital Times, Common Cause in Wisconsin director Jay Heck predicts “the most ugly and expensive state Supreme Court election in Wisconsin’s history in 2009.” This after last years’ race, which saw special interest groups outspending the candidates by a factor of 11 to 1 on television ads.

Pennsylvania is in a similar situation. In 2007, a Virginia-based special interest group spent over a million dollars on ads supporting one candidate for the Pennsylvania Supreme Court. Because the ads didn’t use key words like “vote for” or “elect,” the sponsoring group was found not to be subject to Pennsylvania’s regulations governing corporate campaign contributions.

The best way to combat the inevitable influx of special interest money is to get money out of the process of selecting appellate judges. Merit Selection of appellate judges makes qualifications, not campaign spending, the most important thing for a judicial candidate. We need to make this change in Pennsylvania, before our judicial elections become the ugly ones.

Recently, we posted about a Texas Supreme Court decision that was drawing headlines because all nine of the justices had accepted campaign contributions from the winning party. Now, another Texas court decision is making news for similar reasons.

An appeals court in Texas recently overturned a verdict against a large drug company. What’s raising eyebrows is the fact that all three of the judges on the panel have taken campaign donations from law firms representing the victorious defendant.

The reaction of the attorney representing the plaintiff underscores the big-money problem with judicial elections. From the AP story:

[Attorney W. Mark Lanier] said the ruling demonstrates that Texas should not have elected judges, asserting it was “outrageous” that all three judges on the appellate panel took campaign contributions from law firms involved in defending Merck.

Would you want to go to court, knowing that the lawyer or law firm you were up against had given money to the presiding judge or judges? It’s understandable that litigants in such circumstances are concerned that campaign contributions may influence verdicts. The problem is not whether or not there is such an influence; the perception that there could be reduces public confidence in the courts and undermines the judicial process.

It’s time for Pennsylvania to remove campaign money from the judicial equation. We can do this by adopting Merit Selection for the appellate courts.

The problems caused in West Virginia by one company’s contributions to judicial election campaigns continue to plague the state. Now, even though one of the Justices involved lost his reelection bid, there is an effort to have a case involving that contributor reexamined, with a focus on whether another Justice should have recused from the case. Theodore B. Olson, former solicitor general of the United States and private counsel to Ronald Reagan and George W. Bush, will spearhead efforts to get the issue before the United States Supreme Court.

In a press release announcing his involvement with the case, Mr. Olson succinctly sums up the crisis of public confidence created by partisan judicial elections:

The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.

We think the best solution to the problem is to get appellate judges out of the fundraising business altogether. The way to do this is Merit Selection.

In a May 6th editorial, the Austin American-Statesman discussed a Texas Supreme Court ruling in favor of builder Bob Perry, who had donated thousands of dollars to the campaigns of every justice on the court. The paper concluded that “it is impossible not to be cynical about the poisonous effect of money on justice.”

When thousands of dollars are flowing to judicial candidates, their fairness and impartiality are in doubt. And a ruling like the one favoring a huge donor like Perry undermines the ideal of judicial integrity, even if the decision is on sound legal footing.

The American-Statesman recognizes that court rulings in favor of big campaign donors, no matter how correct or just, are tainted with questions and uncertainty about whether the money influenced the decision. This undermines public confidence in the courts.

Merit Selection solves this dilemma. It gets judges out of the fundraising business. It will help ensure that Pennsylvania’s appellate judges can’t be accused of favoring campaign donors in their decisions. Such accusations have recently been made in West Virginia, and now in Texas. Switching to Merit Selection of Pennsylvania’s appellate judges will make sure that can’t happen here.

A recent ruling by the Texas Supreme Court is getting folks talking about the corrosive effect that judicial campaign contributions have on public confidence in the fairness and impartiality of judges. The court threw out an arbitration award against a Houston homebuilder named Bob Perry, who also happens to be the most prolific campaign contributor in the state. Every justice on the nine member panel has received a contribution from Perry or his family, for a total of over $260,000.

Critics in Texas are speaking out, calling this a case of “big money influencing elected judges.” Are they right? Who knows?

No one can say for sure if campaign money influenced the decision, and it doesn’t really matter. The problem is the perception this process creates. We can understand why a litigant, facing an opponent who has given thousands of dollars to a judge, would not be confident that his or her rights will be impartially protected.

Pennsylvania, like Texas, elects all judges in expensive partisan elections, where lawyers, law firms and organizations with cases in the state courts donate to judicial campaigns. We’ve got to get the money out of the process of selecting appellate court judges.

The West Virginia Supreme Court elections continue to make the news. Earlier we wrote about justices forced to recuse (or not) from cases involving some big campaign donors. Now, at least one justice is talking about the realities of campaign fundraising in the Mountain State. Supreme Court Chief Justice Elliot Maynard has criticized the fact that a lot of attention is paid to business donations to judicial campaigns, while contributions from lawyers and law firms go largely unreported. Justice Maynard called these different levels of scrutiny “the worst hypocrisy.”

But even such concern can’t compete with the realities of judicial elections. According to the Charleston Gazette, a new study of campaign contributions shows that Justice Maynard has raised $586,873. Of that total, $134,050 was contributed by lawyers and their relatives. Maynard is not alone — one-third of the money contributed to the five candidates running in the primaries next week has come from lawyers.

As we’ve said all along, this kind of big-money politics can create the perception that “justice is for sale.” Litigants, facing opponents who may have donated thousands of dollars to the campaign of a judge or justice, might reasonably worry about whether they will be treated fairly. Even if the ruling is completely fair and in accordance with the law, the question may linger. Did money play a part in the decision?

Pennsylvania is facing a similar crisis of faith in the judiciary. As contributions to judicial campaigns increase, it gets harder for Pennsylvania citizens to trust that justice is being fairly administered. Whether it is or not is immaterial. The perception itself can potentially taint every case that goes before our courts.

The only way to combat the perception that “justice for sale” is to get money out of the judicial selection process. Merit Selection makes strong qualifications, not fundraising prowess, the most important credential for a judicial candidate. It’s time we got judges out of the fundraising business.