An editorial in the Youngstown News (Ohio) calls for a meaningful public dialogue about whether to change to Merit Selection.  Citing the recent New Politics of Judicial Elections report, the editorial observes:

The issue of money and the courts is not new. . . .

But the recent U.S. Supreme Court ruling that threw open the floodgates to corporations and labor unions to contribute to political candidates is a game changer.

Can the public be assured the courts will remain fair and independent when money is flowing like water?

The editorial notes that in the past, Merit Selection has not passed in Ohio, but it argues that changed circumstances demand a new look.  Here is the call to action:

There is no doubt that the current money-based system of filling state supreme court seats has fed public cynicism and distrust of the judicial system. It’s time — again — for an intelligent, apolitical, public discussion.

That sounds like a very good prescription for Pennsylvania as well. We hope Pennsylvanians will have the chance to have such a discussion about Merit Selection of appellate court 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.”

The AP’s report on a speech retired Justice Sandra Day O’Connor gave Monday at Seattle University Law School opens with this eye catcher:

The first woman to serve on the U.S. Supreme Court says there’s a serious problem with the government in Washington and many other states: They elect their judges.

O’Connor spoke at a conference addressing the recent Caperton v. Massey decision, which we have blogged about previously. “‘Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about reelection,’” opined the former Justice.

O’Connor emphasized how the increase in funding for judicial campaigns poses a threat to the neutrality of the bench: “She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country.”

Consider that last point in light of a potentially broad decision in the case currently before the U.S. Supreme Court, Citizens United v. FEC, which could open a vast new source of corporate funds to be spent on state judicial campaigns. The argument for removing judges from the political process will only get stronger as corporate money plays a bigger role in campaign financing.

Over at Caffeinated Politics, there’s some good advice: “Wisconsin Should Listen to Sandra Day O’ Connor.”  We think that’s a good idea for Pennsylvania as well.

An editorial in the Austin American-Statesman minces no words in pointing out a major problem caused by electing judges:

Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .

[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”

How do you do that when you have to raise money. . . to run for judge in Texas?

This is a good question, and it’s one we all should be asking in Pennsylvania.  Of course, the answer to that question raises another pressing question:  if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?

The editorial notes that there is something we can do:

The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.

“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”

And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.

Voters in Pennsylvania can do something, too.  Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business.  We can only amend the constitution if the legislature twice passes the amendment and the public votes for it.  So, there is something we can do.  Let’s do it.

In the wake of the recent Pennsylvania judicial primary elections, the issue of Merit Selection has become a hot topic for Pennsylvania bloggers.  The World According to Tony Polombo offers an interesting assessment on some of the problems with judicial elections, focusing particularly on the lack of relevant information available to voters about the candidates:

For most of us, the only way we could tell for sure that there was an election were the countless number of candidates’ signs up and down the road for judges — most of whom we have never even heard of let alone know whether they would make good judges.

Polombo goes on to raise the problem of the role of money in judicial elections, and then suggests Merit Selection as a possible reform.  He notes that electing public officials is important, but argues that elections where voters don’t know enough to make informed decisions are akin to “elections” with only one candidate or where the names of candidates are covered up.

Of course, there’s also the issue that judges are different from other other public officials and are supposed to make decisions without regard to personal opinions, political party pressure, popular will or the views of campaign contributors.  To us, that’s a major reason that electing judges just doesn’t make sense.

Polombo concludes:

The question is not whether merit selection is perfect (it’s not). It’s whether it is an improvement over the system used by a minority of states who still have partisan elections for judges. Here in Pennsylvania, a number of groups, individual politicians, and newspaper editorial boards are supporters of merit selection for judges. The present system we have of electing judges has become a joke. Isn’t it time we all finally give this idea some serious consideration?

Thanks, Tony, for raising the question.  We certainly think it’s time Pennsylvanians gave some serious thought to changing how we select appellate court judges.

David Yonki blogging at the Lu Lac Political Letter also gives some post-election thought to Merit Selection for the appellate courts:

Statewide. . .  I think it should be considered. We don’t know candidates from Western Pennsylvania or even from one of our neighboring counties. But if a candidate has a gender and geographic base, they’ll win.

We are pleased to see Pennsylvanians questioning the current system and calling for some meaningful discussion about reform.  We think it’s time to let Pennsylvanians decide whether to change how to select appellate court judges.  Let the dialogue continue!

An editorial in the  Wisconsin State Journal urges the adoption of Merit Selection in the face of increasing concerns about the role of money in judicial elections and the pressure on judges to state their opinions during judicial campaigns.  In fact, there is now a pending recusal motion based on a Supreme Court justice’s campaign trail statements about sentencing decisions and procedural issues in criminal cases. The editorial notes:

[The recusal] request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin’s have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.

The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?

Studies across the nation reveal decreasing public confidence in the courts, in large part due to the role of money in judicial campaigns.  It is crucial to maintain the public trust in the fairness and impartiality of our courts.  Without that trust, the foundation of our system is undermined.

Why continue to use a system of judicial selection that results in a lack of public confidence in our judges and courts?  The Wisconsin State Journal has a good solution for Wisconsin and Pennsylvania: “Reform is required. Merit selection is the right choice.”

Right now, a major judicial scandal continues to unfold in Luzerne County, PA where two judges have pleaded guilty to federal charges stemming from their having allegedly taken money to divert many juvenile offenders to a specific detention facility.  Other court officials have also been implicated, and the investigation is ongoing. Earlier this week, the Times Leader examined the sources of campaign contributions to the two judges at the center of the scandal.

The report reveals some troubling information: Although one of the judges, Michael Conahan, claimed to be campaigning without taking money from lawyers, when he ran for retention ten years later, he retired all his original campaign debt in large part from contributions by lawyers. This despite his earlier pledge that:

“This will guarantee that there will not even be the chance that when I am hearing a case, my mind could in any way be clouded between the arguments of a lawyer who contributed to my campaign and perhaps an opposing one who didn’t.”

Conahan’s counterpart, Mark Ciavarella also is without campaign debt, due in large part to contributions by lawyers and law firms.

It’s no surprise that lawyers and law firms are big contributors to judicial elections, but it is of great concern to those who believe that perception is important.  Conahan himself identified the potential problems arising from lawyer contributions to judicial campaigns.  Recent surveys and studies make clear that the public is worried about the impact of campaign contributions on judicial decision-making.  Those worries undermine public confidence in the fairness of our courts.  And that’s dangerous for all of us.

The article concludes with a suggestion from some lawyers at a firm that contributed heavily to the Conahan campaign:

Representatives of [the firm] said lawyers are tapped for donations in many campaigns, not just judicial ones. The lawyers say a switch to merit selection of judges would eliminate the demand for contributions in expensive judicial races.

That makes sense — it’s time to get judges out of the fundraising business altogether.

A column by Detroit Free Press assoicate editor Ron Dzwonkowski offers a straightforward, no nonsense approach to the upcoming United States Supreme Court case of Caperton v. Massey.  As we’ve reported, this is the case from West Virginia that presents the question of whether judges have to recuse (step aside) in cases involving campaign contributors.  Mr. Dzwonkowski writes:

Where the courts are concerned, if it looks bad it is bad, so don’t do it. In the legal system, fairness is paramount and the appearance of fairness is … whatever comes right under paramount.

We agree that when it comes to the courts, perception is as important to reality.

His common sense reasoning leads Mr. Dzwonkowski to urge the Supreme Court to decide that: “A judge cannot rule on a case involving anyone, any company, any group, that gave the judge money or otherwise helped the judge win his or her judgeship.”

Lots of folks will be watching next week’s oral argument and the anticipated decision later this spring with great anticipation.   Here in Pennsylvania, it’s election season, so the decision could have immediate impact.  We’ll be following the case closely.

Our partners at Justice At Stake commissioned a survey about the public’s attitudes towards the influence of campaign contributions on judicial decision-making , and guess what they found:  “An overwhelming percentage of U.S. adults believes that judges cannot be completely impartial and should not participate in cases that involve large campaign contributors.” As reported on Gavel Grab and in Justice At Stake’s press release, 81% of those surveyed also believe that judges should not be making their own decisions about recusing in such cases but instead should abide by the decision of another judge.

Reflecting on the poll results, Justice At Stake Executive Director Bert Brandenburg explained:

Americans overwhelmingly believe that campaign cash has no place in the courtroom. . . . They are very skeptical that a judge can be impartial when one side has spent big dollars to help put them on the bench.

As Pennsylvania’s judicial election season heats up, we should be asking ourselves why we continue to put would-be judges in the position of funding their campaigns with contributions from parties and lawyers likely to appear before them in court.  Why do we tolerate a system that undermines confidence that justice will be meted out impartially? It’s time for a change.  We need to get judges out of the fundraising business. Merit Selection can do that.