judgesonmerit.org

An editorial in the Reading Eagle urges that it’s time to give Pennsylvanians the opportunity to vote on Merit Selection.   In a review of the report The New Politics of Judicial Selection, the editorial opens with these key points:

The Issue: A study reveals what we already knew: Judicial elections are becoming more expensive.

Our Opinion: It is time to switch to merit selection of Pennsylvania’s appellate court judges.

The editorial cites the rising costs of judicial elections and the increasing participation of special interests in those campaigns.  It agrees with the Professor James Sample (lead author of the New Politics report) that “‘We’re sort of playing with fire when you’re putting this much money into our courts.”

The editorial then reviews the pending Merit Selection legislation and notes that Governor Rendell and former Governors Ridge, Thornburgh and Schweiker recently joined together to support implementing Merit Selection for Pennsylvania’s appellate court judges.  The closing paragraphs are worth quoting in full:

According to a survey conducted by Pennsylvanians for Modern Courts, 63 percent of the people in the commonwealth supported replacing the current system of electing judges, and 93 percent favored putting the issue to a statewide vote.

Nevertheless, the Legislature has been reluctant to even consider a change, which would take at least two years to implement because it would require a change in the state Constitution.

Why are the 253 members of the Legislature blocking the will of the people?

Despite growing support in the legislature and the dedication of our legislative sponsors, the Merit Selection legislation has not yet reached the floor of either House. We agree with the Reading Eagle that Pennsylvanians shouldn’t have to wait any more.

An editorial in the Scranton Times-Tribune blasts judicial elections and the political money games they have become:

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.

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

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.

Today, PMC partners Justice At Stake, the Brennan Center for Justice and the National Institute on Money in State Politics issued a new report analyzing the last decade of judicial elections entitled “The New
Politics of Judicial Elections: 2000-2009.” Pennsylvania is prominently featured in the Report, which examines the explosion in fundraising and spending in these elections as well as the increasing participation of special
interests.

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

In an op-ed in the Philadelphia Inquirer, Drew F. Cohen argues that Pennsylvania must change the way we pick judges, and he offers an unlikely  model:  Iraq.  Cohen points to the issues that concerned the U.S. State Department when helping to form the Iraqi judiciary: “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylvania.”

We need not look so far away for a better judicial selection model.  Many states have been using Merit Selection for years to ensure a fair, qualified, impartial judiciary.  But Cohen’s comparison is certainly interesting.  In Iraq the High Judicial Council, an independent body, vets and appoints potential judges.  Once selected, the justices get a one-year probationary period.  If they pass a comprehensive performance review at the end of that year, they can be confirmed until the mandatory retirement age of 63.  Cohen compares this to the Merit Selection legislation pending in Harrisburg:  A 14-member citizens nominating commission would evaluate candidates and recommend the most highly qualified to the governor.  The governor would nominate from this list, and the nominee would be subject to Senate confirmation. If confirmed, the judge would serve a four-year term before standing for retention where Pennsylvanians would vote on whether the judge should serve a ten-year term.

Cohen notes that electing judges — and modern judicial elections in particular — don’t fit with our ideals of what courts and judges should be:

When the Declaration of Independence was signed on Chestnut Street, no state had seriously contemplated popular judicial elections. . . . Modern judicial elections are a far cry from the unbiased, dispassionate races originally envisioned by their supporters. Pennsylvanians are exposed to judicial campaigns replete with vitriolic attack ads, parasitic special-interest groups, and seven-figure fund-raising efforts, tarnishing the robes ultimately donned by the victors.

It seems Iraq has realized the special role judges play in a democracy:  judges must be faithful to the law, not to any particular constituency or campaign supporter. People must be confident that when they come to the courts for justice, the judges will be fair and impartial.
Cohen closes with this call to action:  “With Iraq’s judiciary leaving Pennsylvania’s in the rubble of yesteryear, it’s time for Harrisburg to make merit selection a reality.”

Lynn Marks, PMC’s executive director, joined the moderator of Pennsylvania Newsmakers, Terry Madonna, on Sunday to discuss Merit Selection and the need for judicial selection reform in Pa.

Marks outlined some of the problems inherent in judicial elections:

Just think of yourself in court and then you start wondering, ‘Gee I wonder if Terry made a large contribution to one of those judges. And then I think, ‘I wonder if Terry’s lawyer made contribution, and then I think, ‘Gee I hope my lawyer made a huge contribution.’ I shouldn’t even be thinking that when I’m in a court of justice.

Merit Selection takes judges out of the fundraising business.  Judicial campaigns would not have to raise money from lawyers, law firms and organizations that later could appear before them in court.

Currently, this overlap between contributors to judicial campaigns and frequent participants in court is a major cause of concern for the public.  It creates the perception that judges are beholden to special interests, which undermines the integrity of the courts.

Under Merit Selection, this fundraising cycle would be broken, and people would not have to question whether a judge might be influenced by a campaign contributor or supporter.  As Marks explained,

“That’s all we’re asking for, is for. . . [litigants] to feel like they’re getting a fair shake in court.”

PMC’s Lynn Marks appears on this week’s Newsmakers with Terry Madonna to discuss Merit Selection of appellate court judges. The show follows PMC’s recent release of a public opinion poll demonstrating widespread support for Merit Selection and an overwhelming desire to have the issue put to a public referendum.

Here is a list of channels airing the show:

This is a big judicial election year for Ohio, and trouble is brewing already. Like Pennsylvania, Ohio limits the political and fundraising activities of judicial candidates.  But the Columbus Dispatch reports that the candidates for  Chief Justice are trading allegations of unethical campaign conduct.

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.

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.

Paul Carpenter of the Allentown Morning Call devoted his weekend column to a call for Merit Selection.  He reasons that the role of money in the judicial election process poisons the judicial system:

The problem should be obvious to anyone. A child in grade school can see why there’s a conflict if a judge in a position to rule on a legal dispute takes money from somebody with a vital financial interest in that case.

Carpenter spoke with PMC’s Lynn Marks:

”Pennsylvanians should not take pride in leading the nation in spending for judicial elections,” Marks told me. ”Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

Carpenter agreed, arguing “How is it possible for a judicial candidate with a shred of integrity to accept. . . money . . .  [from]  lawyers, law firms and lobbyists with ties to law firms having business before the Supreme Court.”

Unfortunately, under our current system of electing judges, these contributions are legal.  And, the judges are not required to recuse from cases involving campaign contributors.  This all leads the public to be concerned about the influence of money on judicial decisions.

Carpenter argues that the money problem causes a “stench” in our courts.  He urges reform:

That stench can be ended only one way — the merit selection of appellate judges, instead of letting their elections depend on millions of dollars in ”contributions” from lawyers and others with a stake in how these courts rule.

We hope the legislature will begin the process that will let Pennsylvanians decide how to address the problems caused by money in judicial elections.