judgesonmerit.org

An article about campaign financing in a state legislative race raises ethical issues that echo concerns about judicial campaigns. Candidate Todd Stephens is a Montgomery County assistant district attorney. His opponent’s campaign charges that Stephens is accepting campaign donations from defense attorneys and law firms whose clients he’s scheduled to prosecute.

Shira Goodman, associate director for Pennsylvanians for Modern Courts, was interviewed for the story, and she explained that “Stephens faces the same challenge as those running for judge.”

Who else is going to give money to judicial campaigns? Not the general public. [Candidates] are going to raise money from people they know in the community and from those they know through work … those who believe they would do a good job.

Stephens hasn’t broken any laws, nor has he violated any policy of the district attorney’s office. The article doesn’t offer any evidence that he’s done his job differently since he started accepting campaign donations. Yet he’s facing questions about his integrity, based on contributions from donors who may simply be supporting their colleague’s political aspirations.

Judges face an even thornier dilemma when they’re forced to raise gobs of campaign money in order to win elections. Unlike legislators, judges are supposed to be impartial, applying the law fairly, even if it conflicts with their political philosophies. Campaign donations from attorneys, or entities that spend a lot of time litigating, create the perception that money might have some effect on a judge’s impartiality.

As spending on judicial campaigns continues to increase, the ethics of judges are questioned. Decisions involving donors are scrutinized and second-guessed. Public confidence in the fairness of the judiciary erodes.

Merit Selection solves the donation dilemma for judicial candidates. There can’t be a perception of influence from campaign donors if becoming a judge doesn’t require waging an expensive political campaign. It’s time that we brought Merit Selection of appellate judges to Pennsylvania, so that the public can have confidence in the impartiality of our appellate courts, and appellate judges can take the bench without fear of the donation dilemma.

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.

“We put cash in the courtrooms and it’s just wrong.” This is how former Supreme Court Justice Sandra Day O’Connor opened last week’s conference at Fordham Law School studying the judiciary and the courts.

Justice O’Connor has neatly summed up the problem with using partisan elections to select appellate judges. This system requires would-be judges to raise money from lawyers, law firms and other organizations that are likely to appear before them in the future. Who else would be interested enough to fund these increasingly expensive campaigns?

Of course, almost every judge and every contributor says that campaign contributions have no influence in the courtroom. But studies show that the public (and even some judges) believes the opposite to be true. This perception leads to a lack of public confidence in the judiciary and the courts. If the public doesn’t believe that our courts are fair and impartial, the courts can’t effectively serve the public.

Let’s get the cash out of the courtrooms. It’s time for Merit Selection.

There’s been a lot of chatter about a recent editorial in the Wall Street Journal criticizing those calling for Merit Selection of state judges. The editorial opened with a discussion of John Grisham’s new novel The Appeal, a story about a big corporation trying to influence the outcome of a case by contributing to a judicial election campaign. In response to Grisham’s comments that the novel was being played out in real life examples throughout the country, the editorial moved on to attack Merit Selection.

The editorial asserted: “In a result that might surprise Mr. Grisham, a 2007 Harvard study actually found that judges who are elected directly by voters are overall less corrupt than those who win their robes through other methods of selection.” This is a blatant mischaracterization of both the focus and the conclusions of the 2007 Harvard study.

The study, conducted by James Alt and David Lassen, focused on government corruption. It addressed whether the way judges are picked affects the ability of the judiciary to thwart corruption by the other branches of government. The study did not address judicial corruption, and it certainly didn’t reach conclusions about whether the way judges are selected affects levels of corruption in the judiciary.

The author of the editorial twisted the results of the study to serve her purpose of attacking those who support Merit Selection. In doing so, she misled the readers of the Wall Street Journal.

The facts about the Harvard study were presented to the Wall Street Journal in a letter to the editor authored by Lynn Marks of PMC and PMCAction and Seth Andersen of the American Judicature Society. However, this letter has not (at least as yet) been printed by the Journal.

Reasonable people can and do disagree about how judges should be selected. But reasonable people should make their decisions based on the facts. We trust the people of Pennsylvania to do just that and to vote on whether to change the way we select our appellate judges. What are the critics of Merit Selection so afraid of?

Political watchdog site FactCheck.org kicks off its new Court Watch series by taking a look at the race for a Supreme Court seat in Wisconsin. The report examines some of the inflammatory and misleading claims in campaign materials and third-party advertising. It’s an eye-opening look at what happens when judgeships are treated like any other political office.

  The Pennsylvania Supreme Court is weighing the fate of Municipal Court Judge Deborah Griffin, who is accused of covering up her troubled past. As the Court decides whether to remove her from the bench, two Philadelphia newspapers view the scandal as a clear example of why
Pennsylvania needs merit selection.

Philadelphia Daily News
Philadelphia Inquirer

  In late January, a consumer watchdog group called Texas Watch filed ethics complaints against three Texas Supreme Court Justices. The complaints allege that the justices violated state judicial ethics rules by using campaign contributions to reimburse themselves for personal travel.

  While we’ll need to wait for the results of the investigation, these justices are far from the first to be accused of improperly dipping into a large campaign war chest. Under Merit Selection, judicial campaign contributions, and the temptation to misuse them, are eliminated.

More information about the ethics complaints is available here and here.

  The West Virginia Supreme Court is embroiled in a major scandal, involving a multi-million dollar election, and multiple recusals from the trial of a big campaign donor. The Huntington Herald-Dispatch sees the whole mess as a clear reason for the state to adopt a Merit Selection system. In their words, “a judiciary independent of elections is the best safeguard against the influence of… money.” Read the complete editorial here.

The results of a Tulane University study suggest that, at least in Louisiana, campaign contributions to judges are a good way to get an advantage in the court room. The researchers looked at how often each justice on the state’s Supreme Court voted for plaintiffs and defendants. Then, they looked to see if those votes tended to change when a campaign donor was among the parties or lawyers involved.

Not surprisingly, justices voted in favor of campaign donors far more often than non-donors. It also appears that the tendency increased with the size of the donation. To read more about campaign money and its influence on justice in Louisiana, click here. (free, requires registration)