Judges are supposed to represent only the law. Yet in Pennsylvania judicial candidates seek the favor and, increasingly, the money of politically interested individuals and organizations.

It’s not quite clear how a nonpartisan judiciary is supposed to spring from a partisan process.

This is a critical question: how is the public — and how are judges themselves — supposed to believe that judges are different from other elected officials when they get into office the very same way — through hard-fought, expensive partisan elections?  It has become increasingly difficult for the public to believe that judges really are impartial arbiters who treat all comers equally.  And this loss of public confidence weakens our courts.

The Times-Tribune endorses a different way of selecting judges — a system that would combine appointments with retention elections — as the only way to maintain judicial independence.  Merit Selection emphasizes qualifications, skills and experience in selecting judges and gets judges out of the fundraising business.  It is time for change.

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

The Report notes that Pennsylvania ranks second in the nation for election spending during the decade.  In addition, Pennsylvania was home to the most expensive Supreme Court election in the nation during the 2007-08
cycle.  In that year, there were two vacancies on the Supreme Court. According to the Report, candidate and third-party spending totaled $10.3 million.  In 2009, as the report notes, the high spending trend continued in Pennsylvania, and we saw the most expensive single seat race in our history.

The Report certainly highlights the increasing importance of cold, hard cash in judicial elections and also reminds us that poll after poll demonstrates that the public — and judges as well — believe that campaign contributions influence judicial decision making.

But there is some cause for optimism.  The Report notes that reform efforts are making progress, and that Merit Selection is gaining ground in states throughout the nation.

The Report presents a cautionary tale — state judicial elections are getting much worse when measured by the factors that affect public confidence: money and special interest participation.  The public wants
fair and impartial courts. Money is widely viewed as a corrupting influence and it undermines the public’s confidence in our courts and judiciary.  There is a clear solution: get money out of the process of
choosing judges. The most effective way to do that is Merit Selection.

Here are the links to the Report:

Full Report

Letter From Justice Sandra Day O’Connor

Executive Summary

State Profiles, 2000-2009

The Republican Party alleges that Chief Justice Eric Brown improperly solicited campaign contributions.  The Democratic Party alleges that Brown’s challenger Justice Maureen O’Connor, improperly endorsed another judicial candidate.  The Democratic Party also alleges that another sitting Justice, Justice Judith Ann Lanzinger, a Republican up for re-election, also violated the rule against endorsing other candidates.

Aren’t we getting tired of these stories?  These allegations, coupled with expensive elections funded by lawyers, law firms and organizations that frequently litigate in the state courts, makes one wonder why states continue to elect judges.  It seems that money problems and political entanglements are the  inevitable partners of judicial elections.

We need a system that gets judges out of the fundraising business and limits partisan political activity.  Merit Selection is such a system.

Buying Justice: The Impact of Citizens United on Judicial Elections, penned by Adam Skaggs, counsel at the Brennan Centers Democracy Program, reviews the recent trends in judicial election spending, surveys several states in which the decision is likely to have the greatest impact, and offers solutions to combat the deleterious effects of the ruling.

Skaggs beings with a telling quote from retired Supreme Court Justice Sandra Day OConnor, a long-time opponent of judicial elections:

If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.

[After Citizens United], we can anticipate labor unions and trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.

Based on numerous polls conducted across the country over the past ten years, it would appear that both the perception and the reality of judicial impartiality were imperiled even before Citizens United.  Skaggs cites a  poll showing that nine out of ten Pennsylvania voters believed large campaign contributions influences judicial decisions. In fact, Skaggs flags Pennsylvania as one state in which current problems with judicial races will only be exacerbated due to the Courts decision:

Before Citizens United, Pennsylvania prohibited corporations from making any contribution or expenditure in connection with the election of any candidate or for any political purpose whatever.  But that has not kept big money out of judicial elections in the Keystone State.  In 2009, Democrat Jack Panella broke a state record for individual fund-raising spending more than $2.6 million dollars but still lost to Republican Joan Orie Melvin.  Orie Melvin challenged Panella over his connections to his campaign supporters, lambasting him for taking $1 million from the Philadelphia Trial Lawyers Association and asking, ‘Is it pay-to-play? Is it justice for sale? I don’t know, but it sure sounds suspect.‘

The report spotlights PMC’s advocacy for a switch to a merit-based system of selection for the states appellate level judges:

Editorial boards across Pennsylvania have echoed the calls to adopt merit selection; in the words of the Philadelphia Inquirer, Pennsylvanians would have more faith in their judiciary without legal scandals and campaign-donor conflicts arising from judicial elections.

At issue is an allegedly almost decade-long use of Senator Orie’s legislative staff for political work related to the Senator’s own political campaigns as well as those of her sister, Justice Orie Melvin.  Particular focus has been paid to the alleged use of the legislative staffers  for Justice Orie Melvin’s 2009 successful campaign for the Supreme Court.

Senator Orie and Janine Orie were arraigned on Wednesday of this week.  Now the Pittsburgh Tribune-Review is reporting that a second grand jury is being convened to continue the investigation.  Jack Orie, brother and lawyer to Jane and Janine Orie, believes this new grand jury may be targeting sister Justice Orie Melvin.

There are allegations that the entire investigation is politically motivated.  The District Attorney pursuing the investigation, Stephen A. Zappala, Jr., is the son of former Chief Justice Stephen Zappala.  The Ories contend that  Zappala is targeting Senator Orie because of her opposition to legalized gaming, an industry to which Zappala’s father and sister are tied.

The investigation brings a cloud over two branches of government.   And the allegations  about the judicial campaigns highlight the dangers in using an inherently political process — elections — to select officials who are supposed to be different from those who serve in the political branches.  We don’t want our judges or judicial candidates put in the position of having to make tough calls about the ethical rules governing their campaign conduct and that of their employees.

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.

[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.

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.

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.