judgesonmerit.org

There is uncertainty in Tennessee about how appellate court judges will be selected now that the legislature failed to renew Tennesee’s Merit Selection system, which is scheduled to sunset next year. There is a vacancy on the Supreme Court, and apparently some hesitancy among potential applicants. This is not only because it’s not clear what the selection process will entail, but also because of specific concerns related to judicial elections.

Former Tennessee Supreme Court Justice Penny White, now a law professor, attributes the lack of applicants to concern about out-of-state money flowing in to influence judicial elections: “‘It only happens in states where there are elected judges on the bench.’”

We understand this concern, because this is what happened in Pennsylvania last year. We’ll keep watching Tennessee to see what happens there.

A recent ruling by the Texas Supreme Court is getting folks talking about the corrosive effect that judicial campaign contributions have on public confidence in the fairness and impartiality of judges. The court threw out an arbitration award against a Houston homebuilder named Bob Perry, who also happens to be the most prolific campaign contributor in the state. Every justice on the nine member panel has received a contribution from Perry or his family, for a total of over $260,000.

Critics in Texas are speaking out, calling this a case of “big money influencing elected judges.” Are they right? Who knows?

No one can say for sure if campaign money influenced the decision, and it doesn’t really matter. The problem is the perception this process creates. We can understand why a litigant, facing an opponent who has given thousands of dollars to a judge, would not be confident that his or her rights will be impartially protected.

Pennsylvania, like Texas, elects all judges in expensive partisan elections, where lawyers, law firms and organizations with cases in the state courts donate to judicial campaigns. We’ve got to get the money out of the process of selecting appellate court judges.

The West Virginia Supreme Court elections continue to make the news. Earlier we wrote about justices forced to recuse (or not) from cases involving some big campaign donors. Now, at least one justice is talking about the realities of campaign fundraising in the Mountain State. Supreme Court Chief Justice Elliot Maynard has criticized the fact that a lot of attention is paid to business donations to judicial campaigns, while contributions from lawyers and law firms go largely unreported. Justice Maynard called these different levels of scrutiny “the worst hypocrisy.”

But even such concern can’t compete with the realities of judicial elections. According to the Charleston Gazette, a new study of campaign contributions shows that Justice Maynard has raised $586,873. Of that total, $134,050 was contributed by lawyers and their relatives. Maynard is not alone — one-third of the money contributed to the five candidates running in the primaries next week has come from lawyers.

As we’ve said all along, this kind of big-money politics can create the perception that “justice is for sale.” Litigants, facing opponents who may have donated thousands of dollars to the campaign of a judge or justice, might reasonably worry about whether they will be treated fairly. Even if the ruling is completely fair and in accordance with the law, the question may linger. Did money play a part in the decision?

Pennsylvania is facing a similar crisis of faith in the judiciary. As contributions to judicial campaigns increase, it gets harder for Pennsylvania citizens to trust that justice is being fairly administered. Whether it is or not is immaterial. The perception itself can potentially taint every case that goes before our courts.

The only way to combat the perception that “justice for sale” is to get money out of the judicial selection process. Merit Selection makes strong qualifications, not fundraising prowess, the most important credential for a judicial candidate. It’s time we got judges out of the fundraising business.

One of the big reasons we need Merit Selection is to get money and fundraising out of the process of picking appellate judges. How much do these elections cost? Last year four candidates running for two open seats on the Pa. Supreme Court raised $7.85 million. That’s a record in Pennsylvania. And, much of that money came from lawyers, law firms, and organizations — like unions and business organizations — that often have cases in the appellate courts.

This is a problem because in Pennsylvania (and other states) judges don’t have to step aside (”recuse” in legal terms) in cases where the parties or lawyers gave money to help them get elected. That means that a judge can make the decision in a case that involves a lawyer or party who gave money, even a lot of money, to his or her election campaign.

This is a key cause of the increasingly widespread public belief that campaign contributions affect decisions made in the courtroom. This is not a problem unique to Pennsylvania. Illinois, Wisconsin, and West Virginia have all recently been in the news because of cases involving big donors to Supreme Court justices’ campaigns.

We think the solution is to get judges out of the fundraising business. The best way to do this is Merit Selection.

  In late January, a consumer watchdog group called Texas Watch filed ethics complaints against three Texas Supreme Court Justices. The complaints allege that the justices violated state judicial ethics rules by using campaign contributions to reimburse themselves for personal travel.

  While we’ll need to wait for the results of the investigation, these justices are far from the first to be accused of improperly dipping into a large campaign war chest. Under Merit Selection, judicial campaign contributions, and the temptation to misuse them, are eliminated.

More information about the ethics complaints is available here and here.

The results of a Tulane University study suggest that, at least in Louisiana, campaign contributions to judges are a good way to get an advantage in the court room. The researchers looked at how often each justice on the state’s Supreme Court voted for plaintiffs and defendants. Then, they looked to see if those votes tended to change when a campaign donor was among the parties or lawyers involved.

Not surprisingly, justices voted in favor of campaign donors far more often than non-donors. It also appears that the tendency increased with the size of the donation. To read more about campaign money and its influence on justice in Louisiana, click here. (free, requires registration)