judgesonmerit.org

Well, let’s clarify that. You should vote on November 3^rd, and you should do as much research as possible about the candidates for the seven appellate-level court seats up for grabs this year. We even offer information about the candidates on our website here.   But that is because we have to work with the system we have, and this is a system in serious need of change. Pennsylvania is  one of only six states in which all judges are elected in partisan contests. This means, they are nominated by political parties and run on a party ticket.

Popular elections don’t make sense for judges, and partisan elections make even less sense.  Judges must have a great degree of skill and knowledge to do their jobs, and their decisions often have important and far-reaching consequences.  But they are not political leaders.  By requiring judges to run for office, however, we inadvertently require them to act like political figures, and often end up making selection decisions based on how well they can campaign and raise campaign funds rather than on their skills, experience and qualifications.

Imagine the following scenario. Your neighbor is running for judge on your political party’s ticket. You help her campaign, distribute flyers, and raise money.  Down the street, or across town, your business rival does the same for a candidate on his political party’s ticket.  Your candidate loses.  You and your rival then get into a contract dispute.  You and your rival land in court, and your rival’s candidate, now judge (or justice) presides over the case.  Sound like fun?

Judges are meant to be impartial.  They are supposed to make objective evaluations of the law to ensure maximum fairness to both parties.  They are not supposed to have constituents nor favor anyone because of personal opinions, political support or campaign contributions.   Elections force judges to focus on the wrong things. There is a better way to put judges in office (click to see our proposal for a merit selection system of judges – bills are currently before the state house and senate).

John Baer, columnist for the Philadelphia Daily News, greets the day after election day with this question: “Time to end electing judges?”  Answering his own question, Baer argues:

It has been long my contention that electing judges, especially statewide, is a joke. It strikes me even more so today. Pennsylvanians are filling six appellate judgeships this year. Yesterday’s ballot carried 22 candidates. I mean, come on.

First of all, it’s a crapshoot. Nobody’s heard of these people. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.

Then, Baer moves on to the money problem:

Also, judicial races are unseemly. Campaigns are funded by lawyers who later appear before the judges they help elect. So even apart from the pin-the-tail-on-the-donkey (or elephant) aspect of the process, electing judges begs for politics to influence justice.

Just the possibility that it will is enough to diminish faith in our courts.

Baer advocates for Pennsylvania to make a change and remove itself from the handful of states that elect all judges in partisan elections.  We agree with him and hope that Pennsylvanians will ultimately get to decide for themselves whether to find a better way to pick appellate court judges.

We reported earlier that the Philadelphia Democratic party wanted unified support for its judicial slate this time around.  We also reported that certain ward leaders were not certain they would be able to agree.  Now, the Legal Intelligencer reports on its blog that leaders of the City’s Eighth Ward have agreed to support the party’s endorsed candidates who also received recommended ratings from the Philadelphia Bar Association. Ward co-chairman Gregory Harvey explained the ward’s decision:

[Democratic Party leader Bob] Brady appears willing to tolerate the decision of a ward, which finds the bar association’s recommendations important, to only back the members of the DCC slate who are “recommended,” Harvey said. But ward committee officials did not want to endorse candidates without the City Committee’s backing, since Brady has pushed for a unified citywide ticket without other names. . .

Once again, this situation raises the question of what the electoral system is designed to do.  Unlike Merit Selection, which is designed to get the most qualified, fair and impartial judges on the bench, judicial elections place other considerations first, and qualified candidates reach the bench despite the system, not because of it.  This does not make sense to us.

There’s an old saying that in an election, someone wins and someone loses, but no one takes down the signs. Well, in addition to those signs hanging around, we have the spectre of campaigns raising funds to retire their debts. Winners and losers alike share this need, but special issues are raised when winning judicial candidates, who soon will be taking the bench, are in need of funds.

The ClarionLedger reports that recently elected Mississippi Supreme Court Justice Jim Kitchens must raise funds to pay off a campaign debt of $300,000. Lawyers across the state are being asked to contribute. Kitchens’ campaign manager Sam Hall, said the requests are not limited to lawyers. When asked about a phone bank fundraiser directed to lawyers, Hall said: “There is no fundraiser. . . . What we are having is normal campaign business.”

Hall further stated that contributions would not influence Kitchens on the Court, and he explained that Kitchens does not attend fundraisers or view contributor lists.

But we still think that a system that’s set up to have judicial campaigns raise money from lawyers and parties who will appear before them doesn’t make any sense. And it gets worse when the lawyers and potential parties are asked to contribute after the election. Now those contributors know that their money is going to help someone who will be sitting on the Court.

Whether or not a judge knows who contributed what when, this just doesn’t look right. We can understand why the majority of people believe campaign contributions influence courtroom decisions.

The Pennsylvania Law Weekly has published a commentary piece (subscription required) by PMC and PMCAction called “Let the People Decide.”  We argue that it’s time for Pennsylvanians to be given the opportunity to vote on whether we should change the way we select appellate judges.

The big question, in our view, is why only we are willing to give the people the power to make this decision:

We trust the people of Pennsylvania to make that decision. We recognize that reasonable people disagree about how best to select appellate judges. What we cannot understand is why those who defend the judicial election system on the grounds of the right to the franchise refuse to give the people of Pennsylvania the opportunity to vote on the question. How can they claim to be defending the franchise while at the same time distrusting the voters to make this important decision?

So often, critics of Merit Selection base their support for elections on the right of the franchise.  Why, then, won’t they consider allowing the people to exercise the franchise on this critical question of how we select appellate judges?

We want the people of Pennsylvania to vote on whether or not to change the judicial selection process. We’re not afraid to hear their answer. We wonder why “defenders of the franchise” are afraid to let the people vote.

Our campaign for Merit Selection has been grounded on the premise that it’s time to let the people of Pennsylvania decide whether or not to change how we select appellate court judges.  Our efforts are geared toward getting this question on the ballot for Pennsylvania voters. We’re not afraid to let the people weigh in on this question.  That’s why we’re so frustrated when defenders of judicial elections refuse to let the people have a chance to vote on whether or not the system is working.

Now, we’re not only frustrated, we must confess some envy.  As we’ve reported here and here, four counties in three states chose Merit Selection over judicial elections on Tuesday.  In three of these elections, voters chose to switch from elections to Merit Selection.  In the fourth, votes rejected the offer to switch from Merit Selection to judicial elections.  Detailed assessment of these campaigns can be found on Gavel Grab, but we believe the critical point is that in each of these jurisdictions, voters were given the opportunity to make a choice about how they wanted to select their judges.  As Gavel Grab noted:

The voters spoke loudly Tuesday, and they spoke their own minds. The critics of merit selection who say they have the angels of democracy on their side-who take it as an article of faith that voters prefer competitive elections for judges-need to reexamine their assumptions.

We agree.  But they need to do more than reexamine their assumptions.  They need to realize that it’s time to let the people decide how we should be choosing judges in Pennsylvania.  If they believe elections are the answer, isn’t it time to let the people vote about this?

An editorial in yesterday’s Wall Street Journal launches another misguided attack at Merit Selection.  Recycling tired arguments about the influence of plaintiffs’ trial lawyers on nominating commissions, the editorial asserts: “What began as an effort to keep politics out of judicial selection has become a wholesale transfer of power from voters to the legal guild.  Elections have their own problems, but at least they require the legal elite to be accountable to voters. ”

It’s hard to take this complaint seriously as it follows a rundown of the state Supreme Court seats up for election next week that identifies each candidate by political party, whether they lean “left” or “right,” and what interest groups (ie. business or labor or lawyers) support them.

In fact, the editorial actually confirms what we’ve long said is a problem with elections: judges are elected based on factors irrelevant to how they will perform on the bench.  Funding, campaign skill and affiliation with or support by certain interest groups is more important than qualifications, skill and experience.  Our friends over at Gavel Grab hit the nail on the head in their insightful post about the editorial:

Beyond the pedestrian falsehoods, we couldn’t help but appreciate the deeper irony:  over five anxious paragraphs, the Journal lays out attempts by trial lawyers to invest money into justices of their choice to reverse years of elections won by groups seeking to limit lawsuit awards.

We welcome their concern.  If the Journal believes that justices whose campaigns are funded by trial lawyers will be partial to trial lawyers once elected, perhaps they’ll be more inclined to understand the core concern of most Americans about no-holds-barred judicial elections.

It’s the perception that all this money and partisan politicking and special interest involvement create that’s so damaging to our system.  Polls repeatedly show that the public believes that campaign contributions influence behavior in the courtroom.  The Journal’s editorial demonstrates how powerful this belief is.  Merit Selection advocates want to remove this perception and what causes it by implementing a system of judicial selection that puts the emphasis where it should be on skills, qualifications and experience.

The race for the Michigan Supreme Court is heating up with the candidates having raised more than two million dollars already.  But, as a new report from the Michigan Campaign Finance Network explains, the election is costing much more than that: third party spending on television ads for the candidates is nearly two million dollars to date.  That’s about four million dollars so far to determine who’s going to get a job that is supposed to require fairness and impartiality and that the winner must not appear to favor those who helped him or her get there.

The third parties doing the spending: the Michigan Chamber of Commerce and the Michigan Democratic State Central Committee.  Gavel Grab has good descriptions of and links to some of the ads running in this campaign.  Because their ads don’t directly mention voting, these third-party groups don’t have to report their spending or disclose the source of their finances.  Many see this is a growing problem in judicial elections:

‘The peril in this is that an individual or interest group could secretly spend a million dollars to market a candidate – a very important contribution, and then have that justice vote to select its case and rule on its case,’ said Rich Robinson of the Michigan Campaign Finance Network. ‘That has considerable potential for conflict of interests and it certainly creates a troubling appearance.’

Pennsylvania faced similar issues last year when an out-of-state group ran “issue ads” marketing a candidate but not directly asking for votes.  The answer is to get money out of the judicial selection process by using a different way to pick judges that doesn’t rely on fundraising, campaigning and television ads.  We think the solution is Merit Selection for the appellate courts.

We frequently acknowledge that reasonable people can disagree about the best way to select appellate court judges.  We believe it’s time to have a full, open dialogue in Pennsylvania about whether we should change how we pick our appellate judges.  We want that to include a public referendum on the question.  And that’s why we’re working within the constitutional amendment process to pursue the reform we believe is needed.

We understand that people have strong opinions about these issues.  And we welcome impassioned debate.  But we’re tired of opponents of Merit Selection attacking us and the Merit Selection process on false premises.  It happened again yesterday.  American Courthouse accused us of wanting to change to Merit Selection so we can get a certain kind of judge on the bench.  That’s simply not true.

We have never criticized or praised any judge for his or her judicial philosophy or decisions.  We have never advocated the election or defeat of any judicial candidate.  We have always focused on the problems with the electoral system — the skyrocketing campaign contributions from lawyers, law firms and organizations that litigate in the state courts, the lack of required qualifications to serve on the appellate courts, the lack of diversity on our appellate courts, the influence of random factors like ballot position affecting election outcomes, and voters’ inability to access relevant information about the candidates.  These are the reasons we want to change the way we pick our appellate court judges.

So, disagree with us if you must, but get our position right when you do.