judgesonmerit.org

Pennsylvanians for Modern Courts today announced that a new study by the American Judicature Society confirms Pennsylvanians’ concerns about the problematic role of money in judicial elections. AJS reports that in 2008 and 2009, more than two-thirds of the civil cases decided by the Pennsylvania Supreme Court included a litigant, lawyer or law firm who previously had made a campaign contribution to at least one of the elected justices.

The AJS  study examined the 112 civil cases decided by the Court in 2008 and 2009 and determined the number of cases in which at least one of the litigants, attorneys, or law firms involved had previously made a contribution to the election campaign of at least one justice.

The degree of overlap between the list of contributors and the list of those appearing before the Court is eye-opening:

• In two-thirds of the cases (67%), at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.

• In nearly half of the cases (46%), a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.

Malia Reddick, Director of Research and Programs at AJS observed:

We were particularly struck by the number of cases in which the same contributors had made campaign donations to a majority of the Court’s members.

The AJS study does not attempt to determine whether campaign contributors received more favorable rulings. PMC’s Marks explained, however, that:

When one party to a case has contributed to a member of the Court deciding that case, it creates an appearance of influence that causes citizens to doubt the fairness of our judicial system.

Legislation is currently pending in the Pennsylvania legislature to amend the constitution to implement Merit Selection for appellate court judges. “Merit Selection takes money out of the selection process and ensures that we select judges based on their qualifications and experience, not the size of campaign war chests,” concluded PMC’s Marks.

An editorial in the Washington Post makes some very good points about the trouble with electing judges.  Focused on the effort to expand Merit Selection to more judges in Maryland, the editorial is good reading for folks in any state where judges are elected — like here in Pennsylvania.

Elections, campaign contributions and the inevitable conflicts of interest they breed have no place in the selection of judges. For judges, drumming up campaign money — often from lawyers who appear before them — and marketing themselves undermines the perception of impartiality and can in practice lead to its corrosion.

These concerns of course become more pronounced as elections become more expensive, candidates raise more money from parties and lawyers who later appear before them in court, and third parties like political parties, corporations and unions unleash their own dollars to get their preferred candidates elected.

We expect judges to act differently from other public officials — to be faithful to the law without regard to popular opinion, political pressure, or campaign support.   Why, then, do we continue to use the same expensive, divisive, partisan electoral process to choose these very different officials?  The Washington Post offers a fine reason to stop doing so:

Judges are not — and should never be confused with — politicians. Insulating those who serve on the bench from the potentially corrosive influence of money and politics would help to avert cases of mistaken identity.

Merit Selection offers a fine way to avoid such confusion.  If we stop electing appellate court judges, cases of mistaken identity may still come before our courts but at least will no longer involve our judges.

In an editorial in the Times Union (upstate New York), Abbe Gluck and Victor Kovner, members of the Board of New York’s Fund for Modern Courts argue that the U.S. Supreme Court’s decision in Citizens United should cause states to seriously consider replacing judicial elections with Merit Selection.  They write that opening the doors to greater financial participation in judicial elections by unions and corporations

[P]lainly jeopardizes the independence of much of our state judiciary. Plainly, the sense that judges may be beholden to financial donors — whether actual or even just perceived — undermines public confidence in our courts.

We share this concern and know that we are not alone in thinking that public perception is critical — in fact, when it comes to the courts, perception is basically reality.

The writers go on to explain:

Apart from any restraints on corporate contributions that may be adopted by Congress, it is up to individual states to close the gaping hole the court opened, and amend their state constitutions to end judicial elections. Whatever limits the Citizens United majority held that the federal Constitution imposes on corporate expenditures in judicial elections, nothing in the decision limits state governments from eliminating those elections in the first place.

This is a critical point.  The people have the right to choose the best way to select judges.  Nothing requires judicial elections.  As Justice O’Connor pointed out during the Georgetown Law-Aspen Institute Conference last week, our Founding Fathers placed great value on an independent judiciary and chose not to elect federal changes.  At that time, most states did not elect judges either.

The article concludes with an interesting note about Justice O’Connor and her unique insights into the issue of judicial selection: “It is no small detail that she is the only living U.S. Supreme Court justice who also has served as an elected state court judge.”  Justice O’Connor knows what it means to an elected judge, and she is urging states to reject judicial elections. Pennsylvanians should pay attention.

A recent report by the nonprofit, nonpartisan National Institute for Money in State Politics shows that money and incumbency were the two largest factors in determining the results of judicial elections.  Candidates running in partisan elections, where contenders are backed by political parties, averaged as much as triple the money raised by those running in non-partisan or retention elections

The study reinforces what has long been known to critics of Pennsylvania’s own system of electing judges in partisan contests.  Namely, that money plays an overly-determinative role in judicial elections.  Oftentimes this money comes in the form of campaign donations from individuals who may subsequently appear before the elected judge.

Incidentally, the Institute study comes on the heels of a report by PMC  on the record amounts spent in the most recent Supreme Court race. The election cost at least $4.5 million and possibly more than twice that when all of the political party spending is accounted for.

Fundraising prowess weighs heavily on a candidate’ s ability to win an election, and may add some value to the consideration of a political candidate, but should bear little on one’s capacity to be a fair and effective judge.   A switch to Merit Selection would eliminate the influence of money on judicial selection and shift the focus back to finding the most qualified individuals for the job.

In a letter to the Philadelphia Daily News today, bar association chancellor Scott F. Cooper emphasized the importance of changing the way we select appellate court judges. Writing in support of last week’s editorial on Merit Selection, Chancellor Cooper emphasized the unavoidable problem of money in judicial elections:

The judicial system in Pennsylvania operates in spite of the elections that require candidates to collect millions in campaign contributions. Justice simply can’t be served when citizens question the ability of judges to be impartial when their donors appear before them. In a country based on rule of law, the courts must not only be immune to financial influences, the public must see them that way.

Cooper noted that Merit Selection carries the endorsement of the Bar Association, as well as that of Governor Rendell and numerous watchdog groups, including PMC. Public support is crucial to enacting reform. A switch to Merit Selection will require a public vote to amend the state constitution. Cooper argued that citizens should have the opportunity to speak out on the matter:

Pennsylvanians deserve the chance to lend their voice to this important debate. They should be allowed to decide on this constitutional change. And the time for that is now.

Well put Chancellor Cooper.

A newspaper in Fort-Worth, Texas published an editorial this past Friday challenging Texans to reconsider the way they select judges. Noting that Texas has the dubious distinction of being “among a handful of states that elect all their judges in partisan elections” (along with Pennsylvania, Alabama, West Virginia, Illinois, and Louisiana), the paper calls on its citizens to “use this next year to examine and debate a new judicial selection system that the state legislature can adopt when it meets in 2011.”

The editorial noted that in some states “where judicial elections have devolved into money-driven battles of ugly TV ads,” including Pennsylvania, “sentiment for change is building.” The perception of the role of money in elections is a primary reason for a change to Merit Selection. After citing the $4.5 million spent on the recent Supreme Court race in PA as reported by PMC, the paper noted:

The biggest problem is that judges and candidates for the bench must raise campaign money primarily from lawyers, groups and individuals who might have cases before those same courts. In statewide races, the sums can be enormous. It leaves the public wondering whether money is buying influence.

Referencing other problems with electing judges, the Star-Telegram asked rhetorically:

Who doesn’t want fairness, impartiality and justice when they go into court?

Who doesn’t want qualified, capable, independent judges deciding disputes?

Who honestly believes that the only way to achieve that is to elect judges through expensive campaigns that do more to undermine public confidence than to provide voter education about the judiciary?

Good questions. The first step in the process was set in motion at a hearing before the House Judiciary Committee’s Sub-Committee on Courts late last year.  If the state houses pass the legislation currently before committee in two consecutive sessions, the voters will have the ultimate say whether to amend the state constitution to make this important change to the way we select judges.

An editorial in today’s Philadelphia Daily News urges that Merit Selection is a much needed reform.  Discussing the very expensive 2009 Supreme Court elections and the Luzerne County Courthouse scandal,  the Daily News writes:

Welcome to the darker side of the Pennsylvania judiciary, a side that will continue to stay dark as long as we elect judges. . . .

The editorial discusses the danger of fundraising in judicial campaigns, the too important role of the political parties in determining who reaches the bench, and the lack of relevant information for voters trying to decide who should be a judge.

The editorial closes with a shout-out to PMC:

The need for reform is clear. The advocacy group Pennsylvanians for Modern Courts has been a steady voice calling for merit selection through a constitutional amendment.

The Philadelphia Inquirer today called for judicial selection reform, arguing that “The case for reforming the way Pennsylvania selects its judges keeps getting stronger.”  Citing PMC’s analysis of the fundraising and spending in the 2009 Supreme Court election, the editorial focuses on the poisonous role of money in judicial elections:

It’s the troubling influence of campaign fund-raising that continues to create the most concern about electing judges in head-to-head partisan contests.

Most Pennsylvanians say they suspect that justice is for sale because candidates for judgeships have to raise campaign funds. The big-spending 2009 Supreme Court election between Republican Joan Orie Melvin and Democrat Jack Panella did nothing to restore their fraying faith in an impartial judiciary.

The Inquirer urges action, and we hope the call is heeded:

The course for state policymakers is clear: Step in and reform judicial selection, or continue to preside over a system that erodes public confidence in justice as it’s dispensed in Pennsylvania.

Retired federal judge Lee Sarokin praises Merit Selection in his latest contribution to the Huffington Post. He first notes the big problem of money in judicial elections:

Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution?! Is it any less unseemly if the check was delivered a week or a month before? This is the by-product of judicial elections. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe, but for many there is an expectation or a perception of a quid pro quo. How else does one explain contributions to both of two rival candidates?

He writes that while not perfect, Merit Selection systems using nominating commissions have a track record of putting well-qualified judges on the bench. He believes Merit Selection works better than the money-influenced electoral system, especially because of the lack of relevant information available to the voters.

Sarokin also deflates the argument that elections ensure judges are accountable to the people. He argues that judges are not supposed to be responsive or accountable to the public will, but rather to the laws and the constitution.  Elections can undermine this principle:

Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.

Well put.

Pennsylvanians for Modern Courts today announced that the 2009 Supreme Court election between Republican Joan Orie Melvin (the winning candidate) and Democrat Jack Panella is likely to set new fundraising and spending records.  The final numbers are not yet in, as candidates can continue to raise funds until the end of the year.  But we can now report that the Supreme Court election cost at least $4.5 million, and PMC believes the total is significantly higher.

PMC’s press release documents fundraising and spending by the candidates’ campaigns, but notes that although they together raised and spent over $3.6 million, that is not the whole money story.  Instead, we found it necessary to research who else was spending money on the election.

The answer was political bodies, incuding the state Republican Party, the state Democratic Party, and the Republican Senate Committee.  In fact, the state Republican Party directly funded Judge Orie Melvin’s television campaign, to the tune of at least $975,849.  This means the state Party outspent the candidate’s own campaign.

Reports also reveal that from January 1, 2009 until November 23, 2009, the state Republican Party spent at least four million more and the state Democratic Party spent close to $2 million. Although the parties were not required to identify the candidates on whom they spent money, it seems reasonable to assume that a good portion of that six million dollars was directed to the Supreme Court election.

Pennsylvania had the nation’s most expensive Supreme Court elections in the 2007-08 election cycle, and the available data is leading elections experts to predict that Pennsylvania will again earn that title for 2009-10.   As PMC’s Lynn Marks explained, “Pennsylvanians should not take pride in leading the nation in spending for judicial elections.  Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”