judgesonmerit.org

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 Brennan Center for Justice has released its analysis of television advertising expenditures for the 2008 judicial election cycle, and the numbers are staggering:

Candidates, interest groups, and political parties combined to spend $19,861,269 on television advertisements in state Supreme Court elections nationwide this year. . . . That figure is up 24 percent from 2006, when they spent barely more than $16 million.

Big spenders this year included political parties, which really ramped up their spending from past election cycles: “Democratic and Republican state and local committees combined to spend $2,985,941 on television advertising, compared with only $644,989 in 2006.”

These are trends Pennsylvanians should be aware of as we enter our own judicial election season.  In the past, Pennsylvania has followed national trends of campaign spending, often setting new state records for fundraising and spending.  So, we can expect to see even more television ads come campaign season.

Why should we be concerned about all the money raised and spent for judicial election campaigns?

“The perception of judges as impartial umpires suffers, in particular, when outsized contributions and expenditures to judicial candidates are made by the very parties who then appear before those same candidates, once they are seated on the bench,” said James Sample, counsel at the Brennan Center.

Get ready, Pennsylvania — judicial election season is coming.

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.

The Las Vegas Sun’s report on the Nevada Supreme Court elections discloses disturbing allegations about whether campaign contributions might have been offered in exchange for a promise to recuse from the donor’s cases.  The candidate has alleged that a political consultant close to another lawyer — and long-time “enemy” of the candidate — approached the candidate with the promise of large campaign donations in exchange for the agreement to recuse in the “enemy’s” cases.  The FBI was alerted, but as yet, no charges have been filed.

The news report bemoans the state of judicial elections in Nevada:

But even if no crime has been committed — and lawyers disagree on whether one was — the notion that such a conversation took place will confirm the worst cynicism about how campaigns and the judiciary work in our little backwater in the desert. That L.A. Times series [from 2006], headlined “A stacked judicial deck,” detailed how judges apparently were influenced by friendships and contributions — it was a manifesto for an appointive judicial selection process.

The public has grown increasingly concerned that campaign contributors get favored treatment in the courtroom.  This story raises a new question — could contributors use their money not to curry favor but to get unfavorable judges out of the courtroom?

Conspiracy theories and ugly tactics are de rigueur for October in even-numbered years. But what makes this different is the unmasking (again) of a system in which lawyers spend lots of money trying to get a favorable majority on the high court, where justices can help determine where millions of dollars in settlements will go or how much money deep pockets will save.

Whether or not the allegations in this story are proven to be true, the damage to the court system and the judiciary has been done.  This story reinforces the public perception that money matters in the courtroom, and it demonstrates once again why we need to get judges out of the fundraising business.

It’s not a judicial election year in Pennsylvania, but many other states are electing judges this fall.  Two stories from Minnesota illustrate some of the problems inherent in electing judges.

We’ve long pointed out that judicial elections often turn on random factors like ballot position, name recognition and fundraising ability rather than demonstrated skill, qualifications and experience.  A long-serving local judge in Minnesota is facing his first challenger in years.  The incumbent’s campaign co-chair reports that:

[The challenger] has done almost nothing since filing for the race. He has not established a campaign committee nor has he responded to requests for information from the Minnesota State Bar Association, Minnesota Lawyer or the StarTribune. As far as can be determined, Mr. Link is a real estate lawyer with no significant courtroom experience. It has been reported that he chose to run against Judge Bush solely because of the incumbent judge’s “politically unpopular” last name.

In addition to the name recognition game, judicial campaigns continue to grow more and more like other campaigns for public office.  Legal Blog Watch reports that two candidates for the Minnesota Supreme Court have taken their campaigns to Facebook. Mark Cohen of Minnesota Lawyer Blog has commented, “While campaigns run in the virtual world are all well and good, I would like to see a real-world debate between [the candidates].”

We understand that when a state elects its judges, candidates have to be creative in raising funds and running campaigns.  But we think these types of campaigns don’t do much to ensure that the most qualified, skilled and experienced candidates reach the bench.

Gavel Grab reports that the candidates running for the Mississippi Supreme Court and third-party groups supporting them are spending big money.  Citing  the Jackson Clarion-Ledger , Gavel Grab notes that business interests and plaintiffs’ lawyers seem to be filling the coffers of the candidates.

In addition, the same paper earlier reported that “Political action committees are spending more on advertisements for those running for the state Supreme Court than any of those actually seeking the office.”  While the candidates claim not to be involved with these groups or authorizing their activities, allegations about collaboration have surfaced.

Look at what happens when judges have to run for election and raise money to suppor their campaigns. There’s a better way to select Supreme Court justices, a way that gets them out of this mess.  It’s Merit Selection.

The problems created by fundraising in judicial elections continue to plague West Virginia.  Gavel Grab has alerted us to a report in The West Virginia Record detailing that law firms involved in a case accepted for review by the Supreme Court are coming in to two of the three candidates running for Supreme Court.

The case involves a $400 million verdict against Dupont for alleged pollution.  The campaign donors are two of the law firms representing the plaintiffs.

Nothing prohibits such donations or directly requires judges to recuse in cases in which donors are involved.  That’s one of the biggest problems with electing judges.

Editorials in the Montgomery Advertiser and the Tuscaloosa News, echoing the call of a current Supreme Court candidate, urge the state to reject judicial elections in favor of Merit Selection.

The Montgomery Advertiser points out the escalating costs of judicial elections and the problems inherent in requiring future judges to raise campaign funds from lawyers and organizations likely to appear before them in the future:

Over the years, the Montgomery Advertiser’s editorial board has asked dozens of judicial candidates if they are affected by these large campaign donations. Almost invariably, each candidate says that he or she can set aside those donations in his or her mind and rule fairly on issues involving the donors.

But asked another way, not about each of them specifically but about judges in general, and many of them admit that it is a problem for some judges.

The Tuscaloosa News asserts: “the perception is that justice is for sale in Alabama. The unconscionable spending distorts the election process at the same time that it erodes the faith of state residents in an independent judiciary.”

Alabama is on the short list of states, like Pennsylvania, that elect all judges in partisan elections. The Montgomery Advertiser thinks its time for a change:

There are several variations on the merit selection theme being used by other states, but virtually any of them would be a major improvement on the nasty, costly and demeaning way Alabama now chooses its judiciary.

The Tuscaloosa News agrees “at least for the state’s highest — and most expensive — appellate offices.”

We hope the people of Alabama will heed the call for reform, and we hope the people of Pennsylvania will also realize that Merit Selection is a better way to select appellate judges.

An Associated Press article chronicles the rising costs of judicial elections, focusing on current contests in the Midwest. This sounds just like what we’ve been seeing in Pennsylvania — rising contributions from lawyers and entities likely to come before the courts, fundraising records being broken and spending by third party groups to influence elections.

The article questions business representatives and trial lawyers about why they give to these campaigns. But the issue is put into real focus by Charlie Hall of Justice At Stake who explains why requiring groups to disclose their donors and requiring judges to recuse when donors appear before them makes sense: “‘The thinking is, if you took away the financial incentives for having your judges on the court, you would dry up the money.’”

It’s time to get money out of the judicial selection process and get judges out of the fundraising business. We think Merit Selection is the way to do this for the appellate courts of Pennsylvania.

On August 23, the WSJ continued its criticism of Merit Selection, to which Gavel Grab posted a thoughtful and thought-provoking response. Gavel Grab poses an important question:

As the Journal continues its critique of merit selection, it should perhaps acknowledge the downsides of its own position. If the public has concluded that big-money politics can twist justice, is that a belief that the Journal would like to see become more common?

This is a major public problem on which the Journal has been, and remains, stubbornly silent. And it is not a liberal or conservative issue, either.

Judges should not be in the fundraising business, but elections require that they be. As fundraising records continue to be broken in judicial elections throughout the country, public confidence in the courts continues to erode. We need a better way to select appellate judges, one that gets them out of the fundraising business. Merit Selection accomplishes this.