judgesonmerit.org

Wisconsin uses nonpartisan elections to select its judges. That means candidates cannot seek the backing of a political party or identify themselves as a member of a political party.  Unlike Pennsylvania, the ballots do not reflect a candidate’s political party.  According to the Wisconsin State Journal, however, “partisans seeking to elect their chosen candidates to the seven-member court have found a loophole big enough to drive a campaign bus through, as recent Supreme Court races demonstrate.”  This loophole is campaign expenditures on behalf of the favored candidate.

In recent elections, political parties, from inside and outside the state, have been spending money to assist their favored candidates in Wisconsin.  As Charlie Hall from Justice at Stake explained,

“Even though it (Gableman-Butler race) was technically a nonpartisan race, there was nothing to distinguish Wisconsin from some of the nastiest partisan races in 2008. . . . Wisconsin now has essentially partisan elections with this (nonpartisan) fig leaf attached.”

Now, there is a lawsuit pending against the Wisconsin Judicial Commission filed by a judicial candidate who claims the prohibition against joining political parties and announcing one’s party violates the candidate’s constitutional rights of free speech and association.  This case follows a line of cases in which restrictions on candidate’s ability to talk about their opinions, engage in partisan activities and engage in certain fundraising activities have been challenged.

In essence, these cases can be summed up as holding that judicial elections should be just like other elections, without all the special rules and restrictions.  But judges are different from other public officials and they owe their loyalty not to special constituencies, supporters or funders, but only to the law.  Which really leads us back to the same question we always ask: why are we electing judges in the first place?

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.

A column in the Minnesota Daily offers an assessment of the recent elections and challenges readers to think about whether changing from electing judges to a Merit Selection system makes sense. The author notes that despite the large number of ballots cast in Minnesota, many people did not vote in the judicial elections: “Essentially, more than three quarters of a million people went out to vote and didn’t make a decision on the judges who will be interpreting this state’s laws for the next six years.”

The author goes on to explain the proposal for Merit Selection and the reasons proponents believe reform is necessary.  He discusses the issues of campaign  money, independence and nasty campaign tactics.  He also cites those who favor maintaining the judicial election system.

The column closes with a question for the reader:

So what about you? Were you among the 800-odd thousand who voted last week and chose to forego your vote on judicial candidates? Are we better off just leaving this judge stuff to the experts in an attempt to keep money and politics from ruining the judiciary? Or is it more important that each person have a potential voice in the selection of our judges?

We disagree with parts of the premise of this question: we believe citizens will continue to be involved in a Merit Selection system, including having a citizen-based commission, not a panel of “experts,” to screen candidate.  But, we too, would like to know what the public thinks about how we select our appellate judges.  We hope that Pennsylvanians will get a chance to weigh in on this issue in the near future.

The Star-Telegram offers an interesting editorial arguing that last week’s judicial elections demonstrate again why judicial selection reform is needed:  “after the latest round of high-dollar, highly polarized judicial elections, it could be time to be seriously talking again about alternatives to the expensive partisan contests that have been our norm for far too long.”

The editorial goes on to evaluate briefly the different types of selection systems in use across the country.  Here is the assessment of partisan judicial elections — the current system in Texas and Pennsylvania:

Partisan elections provide direct accountability and give voters at least one criterion for evaluating candidates: party affiliation. But judges are supposed to be impartial, not partisan; races are funded largely by those who have a stake in court cases or want to sway the law, and voters often know so little about the candidates that judges can get swept into or out of office based only on party affiliation.

The editorial then comes down in favor of gubernatorial appointments followed by retention elections:

Appointment-retention would avoid the unseemly spectacle of judges raising campaign money, reducing the appearance of special-interest influence. The politics might not be eliminated but would be reduced if candidates were recommended by a bipartisan panel. Retention elections still might result in judges being ousted for unpopular rulings, but public education about the proper role of the judiciary would be needed to counter that type of improper pressure.

Although our favored system looks a little different and would include evalution by a nominating commission, nomination by the governor, confirmation by the Senate and then periodic retention elections, we appreciate the Star-Telegram’s analysis.  We hope that trends in judicial elections across the country will motivate the public to take a close look at how we pick our judges.

Texas is looking at this year’s election results — where 22 of 26 Republican incumbent judges were voted off the bench — and remembering 1994, when all but one democratic incumbent judge were ousted.  The Houston Chronicle reports that while some folks are gearing up for the next round of elections, others are renewing their calls for changing how judges are selected.

Just listen to what current Texas Chief Justice Wallace Jefferson is saying:

This is a strange way to select those who guard our legal rights. . . . It is time to decide whether partisan election is the best means to ensure judicial competence.

Jefferson is joined by former Texas Chief Justice Tom Phillips who long has supported implementing a Merit Selection system for Texas.  According to Phillips, making elections nonpartisan will not solve the problems inherent in judicial electiosn, “including the involvement of special-interest groups, the need to raise money and curry votes, and the lack of voter knowledge of judicial candidates.”

We share the concerns of these Texas leaders and wish them luck.  We recognize that the problems inherent in partisan judicial elections are getting worse, not better, and we hope that Pennsylvania will have the opportunity to choose Merit Selection as a better way to select appellate judges.

During the past few months, we’ve been following stories from the campaign trails in Texas, Mississippi, Louisiana, West Virginia and other states electing judges.  Our focus has been on campaign spending — where the money comes from and where it goes, what the candidates are saying, and the public reaction to the campaigns.  If you’re looking for  information about who won each election, visit Gavel Grab for a good collection of articles about all the races as well as Justice At Stake’s  press release on the elections.

In addition, the American Judicature Society has issued a press release about how voters in four counties — two in Alabama, one each in Kansas and Missouri, have voted in favor of Merit Selection.  These voters were given the chance to decide whether or not to change the way they selected their judges.  In three cases, they changed from elections to Merit Selection; in the fourth, they rejected a proposal to replace a  Merit Selection system with judicial elections.

We hope Pennsylvanians will soon get the same opportunity to decide whether or not to change how we select appellate court judges.

Louisiana is electing a new Supreme Court justice today, and both candidates for the seat as well as outside observers are unhappy about the tone of the election. WWLTV reports: ” A political race between Jimmy Kuhn and Greg Guidry has turned nasty, but this is a race for the Supreme Court of Louisiana, in theory, a race that’s supposed to be above this.”

Each candidate has complaints about tactics used to support his opponent, but they do agree that the current situation threatens to damage the court itself:

And what started out as a race for Louisiana’s highest judicial office looks like standard Louisiana politics.

Kuhn said he found the nasty tone of the race “extremely” disappointing. Guidry agreed, “I’m surprised and disappointed.”

The Louisiana Organization for Judicial Excellence is calling for change, urging a new way to select judges. Chip Wagar explained:

I think the whole process is degrading to the judges that are involved. . . . What we would like to see is merit selection of judges, where we don’t have to go through this whole process.

This makes sense to us.

A reader’s letter to the Clarion-Ledger decries the state of judicial elections in Mississippi and argues that it’s time for a change.  The reader notes that the elections have become more partisan, more expensive and have attracted more special interest participation in recent years:

Why are political parties, vested interest groups, and lobbyists interested in our state judgeships. Is our justice system now for sale to the highest bidder?

This is a question that many people are asking in states that elect judges.  And polls demonstrate a widely-shared concern that campaign contributions affect judicial decision-making.

The letter closes with a challenge that voters in all judicial election states should consider:

If you or I should ever have a case before our Supreme Court, I would pray that the judges’ decisions would be based in law and not partisan politics.

It is time to appoint judges!

Adding to Alabama’s already expensive and nasty Supreme Court election, a Virginia-based organization has begun a series of television advertisements promoting its preferred judicial candidate, spending over $1 million to broadcast ads praising candidate Greg Shaw.  The Press-Register reports that, in response to the organization’s ads, candidate Deborah Bell Paseur’s campaign wants Shaw to demand that the third-party organization either disclose its contributors or stop broadcasting the advertisements.

‘The whole thing we’re interested in is finding out where this money is coming from,’ [Paseur’s campaign manager Marion] Steinfels said. ‘Who is funding these ads?’

Factcheck.org takes a closer look at the Alabama race, carefully scrutinizing the role of the third-party organization.  Gavel Grab is also following this development.

Last year, the same Virginia-based organization broadcast similar ads leading up to the most recent Pennsylvania Supreme Court race, urging voters to “thank” one of the candidates.   Ultimately, because the ads never explicitly advocated for the election of a specific candidate, and were considered “issue ads”, the group was able to avoid disclosing its contributors.

Judicial selection and campaign money: a bad mix.

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.