judgesonmerit.org

For many years, money has been a big issue in judicial elections.  Who’s giving campaign money to which candidate is already becoming a topic of interest for this fall’s Alabama Supreme Court election.

Campaign finance reports show that political action committees (PACs) driven by pro-business lobbyists account for the vast majority of the money raised for Republican Supreme Court candidate Greg Shaw. A significant percent of the money contributed to the campaign of Lauderdale County District Judge Deborah Bell Paseur, Shaw’s Democratic opponent, has come from law firms, individual attorneys and individuals.

Even the candidates recognize the problems with this system.  Shaw explained that enormous campaign contributions make voters wary: “There is a perception in Alabama that justice is for sale in this state. . . . That strikes at the very heart of the confidence level that Alabamians have in the Supreme Court.”

Large campaign contributions erode the voters’ confidence in their court system in Alabama and other states that hold judicial elections, including Pennsylvania. As Bert Brandenburg of Justice At Stake explained:

[P]olls show the public believes campaign contributions influence the outcome of court opinions. And a poll by the National Center for State Courts showed one in four state judges had the same opinion. “When the insiders feel like money is making a difference,” he said, “that’s pretty scary.”

Eliminating fundraising from judicial selection is a big reason to support adopting a Merit Selection system for Pennsylvania’s appellate courts.

A June 29th editorial in Jackson, Mississippi’s Clarion-Ledger shows how wealthy interests on either side of a single issue - tort reform - have twisted elections for the state’s Supreme Court. These elections have become a million-dollar sparring ground, where big bank accounts battle to influence judicial policy, and the interests of ordinary citizens and impartial justice are consigned to the bleachers.

Both sides - plaintiffs’ attorneys and the business/medical community - have too much riding on the outcome of cases not to spend big bucks on these campaigns. Left out and ignored, however, are the poor, the voiceless and those who don’t have enough money for political action committees or lobbyists.

When judicial elections become multi-million dollar endeavors, winning a seat on the bench can become a fundraising contest. Smart, fair-minded and experienced candidates are locked out of the system if they can’t generate the level of donations necessary to compete.

Opponents of judicial selection reform like to present themselves as the champions of the people, fighting to preserve the rights of citizens. But often, what they’re really trying to protect is the ability of wealthy campaign donors to decide who makes it to the bench.

Merit Selection of appellate judges short-circuits the influence of big campaign donations. Because candidates are evaluated on their knowledge and experience, Merit Selection gives qualified people who can’t raise gobs of campaign cash a shot at becoming a judge. The appellate bench will be open to people from all backgrounds, and all areas of the state, with knowledge of and respect for the law as the primary criteria for membership.

As the Pioneer Press explains in an editorial about interim judicial appointees, Minnesota judges “usually take office via a gubernatorial appointment, but then must win re-election to stay in office. This makes it a unique office, out of the flow of daily partisan politics but subject to being sucked in at any moment.” The editorial praises the interim appointment system as a better way to select impartial judges:

Judges should be appointed based on merit and not on political calculus. Fairness, experience and integrity are paramount virtues. We love political battling in legislative races but do not want judicial candidates to be cozying up to interest groups, declaring their views on issues pending before them or attacking foes on television. We want Minnesotans to believe that the judge before whom they are appearing is there for the right reasons and will apply the law impartially.

This is a good summary of the goals of Merit Selection advocates. We want an appellate bench staffed by judges who know and respect the law, and who will apply it without regard to popular opinion, political whims, or the pressures of campaign donors.

Merit Selection is the system designed to accomplish this. While no system can entirely remove politics from judicial selection, Merit Selection frees the process from ever-increasing campaign spending and the exaggerated value of political savvy over ability and experience.

Even one nasty judicial election would have lasting negative consequences, warns Minnesota’s new chief justice, Eric J. Magnuson.

Our citizens trust our judicial system but what happens when you have even one big, nasty, highly-politicized judicial election concerns me greatly,” he said. ”Perceptions of fairness, equity and access I think will be dramatically undermined if the public’s confidence erodes and it only takes one big campaign to do that.

Magnuson argues that Minnesota needs to switch from judicial elections to a system of “retention elections,” as espoused by the commission headed by former Gov. Al Quie. Under the Quie commission plan, a Merit Selection commission would prepare a list of judges, from which the governor would make his appointments. Ultimately, after an initial term in office, the judges would stand before the public in retention elections and it is the voters who have the final say whether to keep or to fire the appointed judge.

If these changes aren’t made, Magnuson predicts that Minnesota will have to endure what Wisconsin suffered last month.

Millions of dollars were spent by special interest groups on ads attacking the candidates as freeing criminals or engaging in political cronyism,” Magnuson said. ”Well-heeled special interests attempting to manipulate the judicial process are no longer the stuff of fictional thrillers written by John Grisham. It’s reality. It’s reality that’s right next door.

It’s also becoming a reality in Pennsylvania, as elections become more and more expensive and attract money from out-of-state special interest groups.

With a vacancy on Missouri’s Supreme Court, there is renewed criticism of the Missouri Plan, and talk in some circles about trying to get rid of the Plan and institute judicial elections. Check out Blue Girl’s post on Show Me Progress, which defends Missouri’s Merit Selection system.

Highlighting the benefits of the state’s model Merit Selection system, Blue Girl explains; “One of the most elegant features of the plan is the way it defangs the money monster. Success in partisan elections depends on money, on the financial contributors of donors (a very specious proposition when we are talking about the very concept of Justice)…” Implementing Merit Selection for Pennsylvania’s appellate courts would “defang the growing money monster” here as well.

Using common sense and frank talk, Blue Girl also attacks a frequently heard criticism of Merit Selection:

Detractors say that the process is too reliant on the input of lawyers, but that argument doesn’t get off the starting blocks with me. Who better to make judgments about legal professionals than other legal professionals? [W]hat a nightmare [it] would be if judges owed political favors to certain segments of the electorate, and naturally had a political bias against others. How could you call that justice?

Thanks, Blue Girl for some excellent insights on Merit Selection. We’ll keep our readers posted on the fight to preserve the Missouri Plan.

Minnesota is bracing itself for increasingly negative and expensive judicial elections. Tapped by the State Bar Association to be the Chairman of the Judicial Election Campaign Conduct Committee, attorney David Stowman will try to prevent the elections from turning ugly and partisan.

Stowman points out that judicial elections should be different than other elections. “Judges do not have a constituency, they are more like a referee.” This essential role is threatened by one of the biggest problems with judicial elections: the influence of money and the buying of influence. “Certainly none of us would want to be sitting in front of a judge that had taken large campaign contributions from the other side of the counsel table,” he said.

States that have judicial elections, like Minnesota and our own Pennsylvania, should expect judicial elections to become increasingly expensive and nasty. Stowman hopes that the Judicial Election Campaign Conduct Committee will only be temporary, and that Minnesota will move away from judicial elections. Some are calling for Merit Selection. By removing the money, Merit Selection provides a cleaner, more dignified process.

Link to story; free, requires registration.

A group called Johnson Countians for Justice is fighting to keep its Merit Selection system for selecting local judges. This fall, a ballot initiative will propose eliminating the Merit Selection system and replacing it with partisan elections. Johnson Countians for Justice recently held a press conference to highlight the importance of the issue and has unveiled a well-researched website with great information for concerned voters. Here’s an excerpt from their FAQ, explaining why Kansas Counties that use Merit Selection actually allow more voter input in judicial selection than those that elect their judges:

In the 2004 Kansas general election of judicial partisan elections, only 15 out of 85 had more than one candidate on the ballot. In contrast, the voters in judicial districts with the merit selection process have the right vote ‘yes’ or ‘no’ to retain all of the judges in that district. Even in the 2006 primary election, only 8 of the 34 partisan elected judges had opposition.

We will follow this effort in the coming months and we wish Johnson Countians for Justice well in their fight to protect Merit Selection.

Merit Selection of judges in Tennessee involves a 3-part system of Merit Selection, judicial performance evaluation, and retention elections. Judges are nominated for gubernatorial appointment by a 17-member Judicial Selection Commission (14 lawyers and 3 non-lawyer citizens). Appellate judges stand for retention election every 8 years.

The Tennessee Plan has been in place since the early 1970s and is also known as the “Modified Missouri Plan.” It’s “winding down” this year, because the Tennessee legislature failed to reauthorize it, mostly because of allegations of too much secrecy in the meetings of the Judicial Selection Commission.

But the way to address the problems is not to scrap the Tennessee Plan and replace it with elections, says Governor Phil Bredesen — and we agree. Tennessee risks throwing the baby out with the bathwater. As Governor Bredesen suggests, perceived problems of secrecy and alleged “back-room dealing” can be addressed by amending the statute to require additional public meetings of the Commission. As the Governor explains, putting a worse system in place is not the answer:

The issue is that when you have state-wide elections, basically for appellate judges, the only people who care about those are people with very narrow special interests. They’re expensive elections because they’re state-wide, and I just think you’d have this scramble to have, you know, every interest out there whether it be business or trial lawyers or anybody else trying to elect their judges and we’d have a vastly worse system than we have today.

The problem in Tennessee isn’t secret meetings in smoke-filled rooms. That flimsy accusation is mostly a “smokescreen” itself for the special interests who seek to inject even more politics — and potentially millions of dollars — into Tennessee’s judicial selection system.

The Wisconsin State Journal has an excellent editorial answering readers’ comments about its recent endorsement of Merit Selection. The editorial addresses many of the recurring arguments and myths we hear from opponents of judicial selection reform. For example:

Q. Why do you want to take away our right to elect our justices?

A: A better question is: Why should we use elections, designed to cater to partisan views and to reflect the will of the majority, to select justices who are supposed to be impartial and to protect the rights of the minority?

Think of it this way: Do you believe football fans should vote on who referees Green Bay Packers games? What happens when the Packers play the Bears? Will Chicago fans outvote the Wisconsin faithful?

Or should the National Football League select officials based on league evaluations of their expertise, impartiality and previous performance?

The piece addresses other common Merit misconceptions, including the roll of politics in Merit Selection, and the non-existent conspiracy to end elections for all government officials. It’s a must-read for anyone interested in learning more about Merit Selection.

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.