judgesonmerit.org

During its Friday conference, the United States Supreme Court voted to grant certiorari in Caperton v. Massey, the case from West Virginia that asks whether judges should be required to recuse in cases involving significant contributors to their election campaigns.  This case will be watched closely by judges in election states and by all those concerned about the escalating influence of money in judicial selection.  As Gavel Grab reminds us, “three in four Americans believe that campaign contributions can influence a judge’s decisions in court.”

The issues in this case touch a key problem with judicial elections — the role of money in campaigns and whether and how such contributions affect decisions in the courtroom.  The outcome will be interesting not just for any rules it might set down but for how it may change the face of judicial elections.  If new recusal requirements are imposed, will it dramatically change the campaign contribution game? If no requirements are set and recusal is left to the discretion of the individual judge, will even more money start flowing in to judicial candidates?  And what will this do to the public perception of how the courts work?

We will continue to post about this case as the briefs are filed and arguments are held, but we note that the whole issue of recusal in cases involving campaign contributors would be eliminated if we chose our judges a different way.

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 Birmingham News reported recently on the role of political action committees (PACs) in channeling contributions from various sources into the Alabama Supreme Court race.  PACs are set up to let various parties and interest groups pool their money.  The PAC appears as a campaign contributor, but the actual contributors’ names do not.

The system also makes it difficult for voters to figure out who financially backs candidates, David Lanoue [chairman of the political science department at the University of Alabama] said. “That is meaningful information,” he said. “Donors have agendas.”

“Alabama needs to peel back the curtain so the average voter can know who is giving the money and which agenda it is likely to represent,” said Charlie Hall, of Justice At Stake.  In a recent post, Gavel Grab provides a closer look at funding for the Alabama Supreme Court race.

As we have previously noted, the Alabama Supreme Court race is becoming more expensive and increasingly negative.  The influence of large campaign contributions, through PACs or from direct donors, can be eliminated by replacing judicial elections with Merit Selection, a system that focuses on one’s qualifications as a judge, not on how much money one can raise.

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 New York Times reported this Saturday that the United States Supreme Court is nearing a decision whether to grant certiorari in Caperton v. Massey.  The West Virginia case, which we have covered before, “turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.”  Gavel Grab and Slate offer good analyses of the questions raised by this case.

If the Supreme Court decides to hear Caperton, it could determine when a judge would have to remove him or herself from a case in which a campaign contributor is a party.  Many people question the impartiality of judges hearing cases involving contributors to their own campaigns.

‘If the public believes that judges can be bought,’ said Keith R. Fisher, a lawyer for the bar association [one of several groups that have urged the Supreme Court to hear the case], ‘that is really poisonous and undermines public confidence in an independent judiciary.’

How much campaign money does it take to give the impression that justice is for sale?  When does the appearance of impropriety become so great that a judge must step aside?  Merit Selection eliminates these questions because it allows judges to focus on the law, not on expensive political campaigns.

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.

Gavel Grab offers a detailed analysis of “Our Courts and Corporate Citizenship,”a conference held by the Sandra Day O’Connor Project on the State of the Judiciary in Washington, D.C. last week.  Featuring judges, justices and business leaders from throughout the country, the conference focused on the relationship between the functioning of the courts and the business environment.  Many participants expressed concern about the escalating fundraising in state judicial races and the damage it causes to the public’s perception  of courts’ and judges’ independence and impartiality.   Justice O’Connor’s opening remarks sum up these concerns:

The pendulum of judicial bias swings both ways. . . . Once you hang the For Sale sign on the court house door, you can’t predict who the buyer will be. As plaintiff and defendant-friendly groups each race to pour money in to get their judges elected, the only result they’re assured of is that the rule of law will suffer.

This is a major problem with electing judges and a key reason we advocate for implementing a Merit Selection system for Pennsylvania’s appellate courts.

We’ve been following the efforts of Johnson County, KS to maintain its local Merit Selection system in the face of an upcoming referendum to replace the system with partisan elections.  The Shawnee Dispatch offers an analysis of the views of those supporting and opposing the ballot measure.

Tim Kolba of Kansas Judicial Review, the group advocating for the elimination of the Merit Selection system claims that “left-leaning attorneys” dominate the current process.  Greg Musil, working with Johnson Countians for Justice — the group seeking to defeat the change and preserve Merit Selection — says Kolba and Kansas Judicial Review are motivated by a desire to get more conservative judges on the bench.

Gavel Grab is following the situation in Johnson County closely, and we will continue to do so as well.  For now, suffice it to say that we think that the key issues are how to get the most qualified, fair and impartial judges on the bench and how to keep judges out of the fundraising business.  The answer is Merit Selection.

This past weekend, the Pittsburgh Post-Gazette article addressed the concerns about the effect of large  contributions to judicial campaigns and the public perception that justice is for sale.  The context was the ongoing case involving West Virginina judicial elections, Caperton v. Massey,

The case, which we have covered before, revolves around whether the Due Process Clause of the Fourteenth Amendment was violated by a judge’s refusal to recuse himself from a case involving a major campaign contributor.  It illustrates the problems with the recusal system, which relies on judges to voluntarily step aside when their impartiality might reasonably be questioned.  Different judges interpret the recusal guidelines differently: some feel that only evidence of bias should disqualify a judge, while others believe that “the mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts.”  (Gavel Grab has more about recusal and Caperton v. Massey.)

The article offers a thorough history of the case, a survey of how much it costs to run a judicial campaign in various states and a primer on past recusal cases.  Explaining that the parties are waiting to hear whether the United States Supreme Court will take the case, the article quotes Mr. Fawcett, the lawyer representing Mr. Caperton: “As soon as people start to think there’s a possibility justices can be affected by campaign contributions, quickly you’re at a point where the pillars of the system can collapse.”

We will be watching the case and keeping you posted on its status.  But this is another good reminder of what electing appellate judges in expensive partisan campaigns just doesn’t make sense.