judgesonmerit.org

Pete DeCoursey, bureau chief at the influential news source Capitolwire, has come to the realization that electing judges just doesn’t make sense. After covering judicial elections for over a decade, this election, with all its negative ads and astronomical costs finally tipped the scales (no pun intended).

In a groundbreaking article last Thursday, DeCoursey asked “Where is the public value in Supreme Court elections?” We highlighted some very compelling arguments from that piece here.

On Monday morning, DeCoursey joined Bonita Hoke, executive director of the League of Women Voters of PA on Harrisburg’s WITF Smart Talk. When asked what made him change his mind, DeCoursey responded that because judges are restricted from discussing issues in depth (legally or tactically, whichever), the idea of voters being able to make informed decisions seems to be a fiction.

Heading further west, J. Daniel Hull, a prominent blogger and a partner at the Pittsburgh law firm Hull McGuire was quoted in the Wall Street Journal Law Blog about his call for voters in states with judicial elections to stay home. Why would he make such a plea?

Hull explained that judges are different than other government officials, and argued they should not be elected:

The popular election of state judges . . . gives the appearance of justice being ‘for sale’ . . . . State systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.”

The point: Judges should not have ‘constituents,’ i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to” dress that up.

Hull’s frustration is palpable:

American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect–and also poses risks–but it is far better than what most American states currently have in place. It’s time for American states to grow up.”

We agree that it is very difficult – if not impossible – to design a perfect judicial selection system.  And we know that it is not possible to take politics entirely out of the process of picking those who will serve on the bench. But it is possible to take money out of the judicial selection process and make qualifications the determining factor for who reaches the bench. This is what Merit Selection can accomplish.

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.