judgesonmerit.org

The Brennan Center for Justice at NYU School of Law has published a new article analyzing the negative impact the recent Supreme Court decision Citizens United v. FEC will likely have on state judicial races.  In that case, the Court overturned a long-standing ban prohibiting corporate expenditures in elections.  As a result of the ruling, corporations and unions will now be permitted to spend directly from their coffers to support or oppose candidates for elected office.  These include candidates for state judicial benches.

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.

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.

CNN reported yesterday that retired U.S. Supreme Court Justice Sandra Day O’Connor, a long-time advocate of merit-selection, has lent her name and her support to a project that will work to change the way state judges reach the bench. While many states already have some form of merit selection in place, others, including Pennsylvania, continue to elect their judges in contested partisan elections.

The O’Connor Judicial Selection Initiative, created by the Denver-based Institute for the Advancement of the American Legal System, hopes to change that by assisting state-level reform efforts. O’Connor expressed her concern that judicial elections lead to both a loss of judicial independence and a loss of public confidence in the court system:

Studies show that roughly 70 percent of the public believe judges are influenced by campaign contributions, and more than one quarter of judges agree.

This is alarming because the legitimacy of the judiciary rests entirely on its promise to be fair and impartial. A judge’s sole constituency should be the law. If the public loses faith in that impartiality, then there is no reason to prefer the judge’s interpretation of the law to the opinions of the real politicians representing the electorate.

Unlike other elected officials, a judge’s role is not to be responsive to the public. Judges have a duty to be impartial and to adhere to the rule of law, even if than means making unpopular decisions.

Judges themselves admit that impartiality may be compromised by the abundance of “cash in the courtroom”—the result of campaign contributions made by third parties to the judge’s campaign.

Ohio Supreme Court Chief Justice Thomas Moyer, who supports changing his state’s voter-based system, has also said that money needs to be taken out of the equation in order to maintain public confidence. This would mean a switch to merit selection. Hopefully, with insight and aid from the likes of O’Connor and Moyer, states will be encouraged to re-evaluate and reform the ways in which their judges are selected.

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.