Some friends in the corporate world share our concerns about the role of money in judicial elections. Merck VP, Charles R. Grezlak, told the Center for Political Accountability, a nonprofit group working towards greater transparency in political spending, that the pharmaceutical company would no longer make donations to state supreme court candidates.

Merck’s decision came partly in response to the recent U.S. Supreme Court ruling in Caperton v. Massey. Writing for the majority, Justice Kennedy said:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In spite of the Court’s strong warning that campaign contributions may jeopardize a litigant’s right to a fair trial, judicial fundraising is a necessary evil in states that continue to elect their judges through partisan elections.

Merck’s decision to remove itself from this politicized arena is a welcomed step in the direction of greater judicial accountability. Merck’s leadership on this issue may encourage other major companies to follow suit by extracting themselves from the money game as well. Businesses, as well as all other potential litigants, should not feel pressured to compete for justice with their checkbooks.

In Pennsylvania, campaign spending on judicial elections has skyrocketed. Notable (and notorious) was this year’s Supreme Court election in which the two candidates raised well over three million dollars combined. Pennsylvanians need to take a hard look at where all this money is coming from and how it is impacting the fairness of our courts.

In the wake of the United States Supreme Court’s decision in Caperton v. Massey, many states decided to review their rules governing recusal.  Michigan  last week formally issued a new recusal rule that includes a provision empowering the entire Supreme Court to review and overrule the refusal of one of the justices to recuse. Our friends at Gavel Grab have a detailed analysis of the continuing bitter debate between the current justices regarding this rule.

What grabs our attention is the particular focus of the dissenting justices on the “rights of elected judges” and those who voted for them.  Here’s part of Justice Maura Corrigan’s commentary dissenting from the rule change:

For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interested [sic] in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections than justices of this Court.

When it comes to the courts and fair trials, we’ve always been most concerned about the litigants having a fair trial.  Certainly, a litigant’s right to have a fair and impartial judge outweighs a judge’s right to hear a particular case.  And, frankly, a litigant’s rights — even in traffic court — should be of more concern to everyone who cares about justice than the judge’s right to preside over a particular case.

Chief Justice Marilyn Jean Kelly made a similar point in her response to the dissenters:

[I]t is a gross perversion of law for Justice Corrigan to allege that, ‘In one administrative order [the recusal rule], the majority takes away the right of every citizen of Michigan to have his or her vote count.’ The accurate statement is, with this rule, the Court permits a justice’s recusal where that justice is unable to render an unbiased decision and unable or unwilling to acknowledge that fact. The justice system and this Court can only be stronger for it.

Winning an election does not give a judge the right to preside over any or every case that comes before the Court.  Nor does voting for a particular judge give the public the right to have that judge preside over any or every case that comes before the Court.  A judge should only hear a case if it is certain he or she can be fair and impartial.

The results at the ballot box should not dictate when a judge is free from bias in a particular case.  In face, as we have argued repeatedly, it is precisely because judges are elected that strong recusal rules are necessary. The fact that some — including some state Supreme Court justices in Michigan — seem to believe that election returns are more important than ensuring a fair and impartial court — should be of great concern to us all.

The AP’s report on a speech retired Justice Sandra Day O’Connor gave Monday at Seattle University Law School opens with this eye catcher:

The first woman to serve on the U.S. Supreme Court says there’s a serious problem with the government in Washington and many other states: They elect their judges.

O’Connor spoke at a conference addressing the recent Caperton v. Massey decision, which we have blogged about previously. “‘Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about reelection,’” opined the former Justice.

O’Connor emphasized how the increase in funding for judicial campaigns poses a threat to the neutrality of the bench: “She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country.”

Consider that last point in light of a potentially broad decision in the case currently before the U.S. Supreme Court, Citizens United v. FEC, which could open a vast new source of corporate funds to be spent on state judicial campaigns. The argument for removing judges from the political process will only get stronger as corporate money plays a bigger role in campaign financing.

Over at Caffeinated Politics, there’s some good advice: “Wisconsin Should Listen to Sandra Day O’ Connor.”  We think that’s a good idea for Pennsylvania as well.

Yesterday, the United States Supreme Court heard oral argument in Citizens United v. FEC. We reported earlier that we joined Justice At Stake and 18 partners in submitting an amici brief in the case, which focuses on restrictions on corporate contributions in elections.  Gavel Grab has extensive coverage of the argument here.

Justice At Stake Executive Director Bert Brandenburg offers an interesting commentary about the case on the blog of the American Constitution Society.  Brandenburg notes:

Just three months ago, the U.S. Supreme Court reached a historic conclusion in Caperton v. Massey. The majority held that the Constitution sets limits on how much special interests can tilt the scales of justice, by requiring judges to step aside in certain case involving their supporters.

Just three months later, Citizens United v. the Federal Election Commission, the campaign finance case argued today, has seemed to float in an alternate universe. . . .

A comparison of the cases is revealing. While Caperton focused on the courts, its gritty facts should strip away any glossy illusions about what will happen if corporate and union treasuries are turned into private campaign war chests.

Brandenburg goes on to compare the arguments made in both cases, noting that former Solicitor General Ted Olson who argued on behalf of Caperton earlier this year at that time opined that “‘The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.’” Yesterday, Olson argued on behalf of Citizens United and opined that “with independent groups, ‘there is less of a threat of corruption because there is no quid pro quo.’”  Brandenburg notes that it is very difficult to square these positions and concludes by posing this chilling hypothetical:

[T]hree Americans in four believe campaign cash affects courtroom decisions. If the federal ban is struck down, similar state laws will be next.

If anyone wonders whether that will have a real-world effect, they should look at Caperton once more and ask this: What if Don Blankenship, the coal executive with litigation in West Virginia, hadn’t been forced to spend from his own pocket? What if he could have just cut a company check to underwrite an election? And what if an unwise ruling makes that the norm, not the exception?

As we wait for a decision in Citizens United, it might be a good time to think about how much worse the situation could become and to ask again why we continue to select judges by a process that requires them to raise campaign funds from individuals and entities likely to appear before them in the future.

Not long ago we reported that there was another recusal petition involving a West Virginia judge in a case involving Massey Coal Company, the same company involved in Caperton v. Massey (the recusal case that went all the way to the U.S. Supreme Court).  Judge Michael Thornsbury now has refused to recuse himself from the case.

According to the Charleston Gazette, “Thornsbury said allegations made against him by lawyers for local residents were “false and/or misleading” and that he should not have to step down from the lawsuit.”  The plaintiffs had alleged a friendship between the judge and Massey CEO George Blakenship, as well as the judge’s  appointment of a business partner as administrator over a medical monitoring program.

Also at issue was financial support for the judge’s campaign by one of Massey’s lawyers.  Regarding allegations about the defense attorney’s hosting of a fundraiser for the judge, the judge’s response to the recusal petition explained:

“The fact that both plaintiffs lawyers and defense lawyers sponsored the event shows the high esteem Judge Thornsbury is held by the entire bar,” wrote Jackson Kelly lawyer Daniel L. Stickler. “It was the shared belief of the sponsors of the event that Judge Thornsbury is a fair and impartial judge who never showed bias or prejudice towards any litigant appearing before him.”

It doesn’t matter that members of the plaintiffs and defense bar supported the judge’s campaign. The point is that someone felt uncomfortable having a judge presides over their case once they learned the other party was represented by one of the judge’s campaign supporters.  No one should ever have to worry that a judge’s decisions could be swayed by campaign contributions.

Judicial elections create an enviroment in which candidates need money to finance their campaigns.  The most likely sources of that money are lawyers, law firms and entities that frequently litigate in the state courts.  When judges later preside over cases involving lawyers or parties who financially supported their campaigns, it creates the perception that justice might be for sale. This undermines public trust and confidence in the courts and should not be permitted to continue. The solution is to get judges out of the fundraising business.

In the wake of the judicial primary elections and on the same day the United States Supreme Court found that campaign contributions required a judge’s recusal, PMC and PMCAction are proud to announce that new legislation has been introduced into the Pennsylvania House and Senate to implement a Merit Selection system for the three statewide appellate courts.

We applaud  prime Senate sponsor Sen. Jane Earll, R-Erie, and cosponsor, Sen. Daylin Leach, D-Delaware and Montgomery, and House sponsors Reps. Matthew Smith, D- Allegheny, and Will Gabig, R- Cumberland, for their leadership in working to create a better system for selecting appellate judges.

As Senator Earll explained, “The public has been losing confidence in the fairness of our courts and judges, in large part because big campaign contributors often appear in court before the judges they support.  We need a system that encourages public trust and confidence in the courts. That system is merit selection.”  Representative Smith concurred, noting that “I am pleased to advocate for this key reform to our judicial selection process so that we can ensure the system is fair and reasonable.”

We are pleased that Pennsylvanians will have the opportunity to discuss how we should be selecting our appellate court judges.  This is a critical issue, and it has been a hot topic recently because of the recent elections, the nomination of Judge Sotomayor to the United States Supreme Court and the anticipated decision in Caperton v. Massey. Pennsylvanians should continue to raise questions and debate the issue.  We sincerely hope that this process will result in the question being put to Pennsylvania voters in a referendum to change the constitution.

A brief summaryof the legislation can be found on our legislation page.  The text of the proposed amendment and accompanying enabling legislation are available: SENATE BILL No. 860 and HOUSE BILL No. 1621 (proposed amendment); SENATE BILL No. 861 and HOUSE BILL No. 1619 (proposed enabling legislation).

We hope to engage in a productive dialogue.

The United States Supreme Court today announced its decision in Caperton v. Massey, the West Virginia case asking whether the Due Process Clause requires judges to recuse in cases involving campaign contributors.

The Court, in a five-four decision authored by Justice Kennedy, ruled that in some cases, circumstances — including the amount of the contribution, the proportional size of the contribution related to other campaign fundraising and expenditure, the probable impact of the contribution on the election, and the timing of the litigation — may require recusal because “there is a serious risk of actual bias.”

The Court made clear that the inquiry is not whether there was actual bias, but whether all the circumstances create too great a risk of bias:

Although there is no allegation of a quid pro quo agreement, the fact remains that  Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome.  Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.  And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

PMC is heartened that the Court recognized that expensive judicial elections and the fundraising and contributions they require can create serious perception and confidence problems for the public.  We fear, however, that the dissenters’s predictions of future confusion and ongoing litigation will come to pass.  We believe the best solution is to get judges out of the fundraising business altogether and end the poisonous campaign contribution game by changing to Merit Selection.

The Southeast Texas Record reports that a judge in Texas is being asked to recuse because of campaign contributions made to him by lawyers representing defendants in a toxic exposure case. During a recusal hearing before a different judge (following the original judge’s denial of the recusal motion), the plaintiffs argued:

“We don’t think we can get a fair trial from Judge Floyd. . . It’s undisputable he has taken money from the (defendants’) law firm … we believe the payment is a violation of due process.”

Both parties discussed Caperton v. Massey during the recusal hearing: defendants argued that Caperton was much more “egregious”, while plaintiffs noted “the case shows a growing ‘national concern’ to whether judges should preside over any case where donated money turns out to be the focal point.”

Which all raises the question: why are states like Texas and Pennsylvania still choosing judges in a way that requires fundraising from lawyers and parties that later appear in court?

PMC’s letter to the editor in response to the Philadelphia Inquirer’s editorial on Caperton v. Massey identifies Merit Selection as the way to get judges out of the fundraising business.  In the letter, PMC argues that rules requiring recusal in cases involving campaign contributions are a good first step, but more is needed to address the poisonous role of money in judicial selection:

It’s time to get judges out of the fund-raising business altogether. Today, when most of those surveyed are worried about the impact of contributions on how judges rule, we need a system that takes money far away from the scales of justice. When you go to court, you want a judge who considers the facts and the law; you shouldn’t be worrying about whether your lawyer or the opposing side gave a campaign contribution. Replacing elections for appellate court judges with merit selection is the way to eliminate this concern.

This weekend’s issue of Parade Magazine briefly recaps the Caperton v. Massey case and asks “Can Judges Be Bought?”  Justice At Stake’s Charles Hall is quoted:

If you were in court and found out that your opponent was one of the biggest contributors to the judge, would you be happy?  I think almost all Americans would say, ‘I want a different judge.’

There’s an on-line poll asking readers: “Should a judge be allowed to hear a case involving a campaign contributor?”  As of this writing, 93% of respondents answered “No.”  We’ll tune in for final results when the polls close.