judgesonmerit.org

Yesterday the Supreme Court issued its long-awaited opinion in the case of Citizens United v. Federal Election Commission, overturning two Court precedents and effectively striking down decades of law intended to keep corporate money from influencing elections. After yesterday’s ruling corporations and unions will be allowed to spend money from their treasuries to directly advocate for particular political candidates.

Here’s what the local papers had to say:

The Philadelphia Inquirer reported that the 5-4 decision proved a victory for the Court’s conservative bloc, who maintained that a ban on corporate spending violated the First Amendment right to free speech. Most democrats, including President Obama, condemned the decision. In his dissent, Justice Stevens warned that the ruling “threatens to undermine the integrity of elected institutions around the nation.”

In a separate article, the Inquirer focused on what the decision will mean for Pennsylvania. Pennsylvanians for Modern Courts’ Deputy Director Shira Goodman predicted that yesterday’s ruling will “open the floodgates to direct corporate and union spending in statewide judicial elections.”

The Post-Gazette noted that the decision likely will cause Pennsylvania to change its own laws to now permit private corporations to spend their own money on political campaigns. PMC warned of the negative implications the decision could have on judicial races, a point conspicuously absent from the Court’s majority opinion.

The Times Leader quoted Goodman as well, underscoring the worry that the additional influx of money could affect the impartiality of state judges: “Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.”

For a media round-up…

This is the opening for Sunday’s op-ed in the Pittsburgh Post-Gazette by Lynn Marks and Shira Goodman of PMC:

The O’Jays famously sang, “Money, money, money, money. Some people got to have it. Hey, hey, hey. Some people really need it.” This is certainly true of statewide judicial candidates in Pennsylvania.

Marks and Goodman explain that to run a state-wide campaign requires a lot of money, and the money usually comes from lawyers, lawfirms, unions and businesses that frequently litigate in the state appellate court system. “They give because they care about who runs the courts in which they pursue their interests.” The op-ed goes on to explain why this seemingly logical scenario creates problems: it creates a perception that campaign contributions affect decision-making in the courtroom.

The abiding symbol of our courts is the statue of Justice blindfolded, signifying that judges should not be swayed by personal bias, popular opinion, political expediency or the identity of the parties appearing before them. A judge’s personal relationships and political connections should have no influence on how cases are decided. Electing judges undermines this image. The public perceives a judge with eyes wide open, pockets bulging with campaign cash and knowledge of where the cash came from.

Even though the vast majority of judges are sincere when they explain that campaign contributions don’t affect how they decide cases, the public understandably has trouble believing this. It looks like justice is for sale to the biggest campaign contributors.

Marks and Goodman then explain that the current Supreme Court race — with the candidates running an ad war and fighting about who took contributions from what entity — is only confirming for the public the poisonous influence of money in the judicial selection system.  There is only one answer: “Enough is enough. It’s time to get judges out of the fund-raising business and to put the blindfold back on. The way to achieve this is to stop electing appellate court judges.”

The Pittsburgh Post-Gazette today explores whether voters can sort through and make decisions about nine candidates running for the Superior Court, one of two intermediate appellate courts in Pennsylvania:

There are 15 positions on the Superior Court bench, and four are open this year.

But in a judicial race like this, it is likely that voters know little about the nine candidates from around the state who are vying for a seat.

“The person who really wants to be responsible about it really has to work hard,” Ms. Goodman [of Pennsylvanians for Modern Courts] said.

That means reading online profiles, seeking out bar association recommendations and watching available debates.

But G. Terry Madonna, a political analyst at Franklin & Marshall College, doesn’t expect much of that to happen this year.

“These candidates will not be known to the voters,” he said. “They won’t recognize their names, let alone what they stand for.”

This is troubling, because it can discourage voters from participating in these elections.  Traditionally, voter turn-out in judicial election years is low.  And, many who do show up to vote for other offices, such as District Attorney or County Commissioner, often throw up their hands and decide to leave the judicial section of the ballot blank.

The problem is, the decision about who serves on our appellate courts is very important.

That’s why Ms. Goodman’s organization supports judicial merit selection rather than election of judges.

“Judges have a really important role in our society,” she said. “Their decisions affect everybody. The courts have far-reaching power, and voters don’t really think about that until they are in court.”

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

While the judicial reform bills currently before the state legislature would replace elections with Merit Selection only for appellate-level judges, the upcoming local judicial elections — especially for Court of Common Pleas vacancies in Allegheny County and Philadelphia — demonstrate the political party gamesmanship that can define judicial elections and determine who reaches the bench.

In Pennsylvania, where elections are partisan, judicial candidates are listed by party affiliation.  This creates a risk that votes will go to a candidate based on party affiliation rather than on qualifications. In Allegheny County, according to the Pittsburgh Post-Gazette,  it is “commonly accepted that candidates generally need to be on the Democratic ticket to win.”  This is also true in Philadelphia County.  Candidates for the local courts can cross-file, that is, run on both the Republican and Democratic party tickets.

The Post-Gazette explains that two candidates who lost in the Democratic primary in May, but won spots on the Republican Party ticket, have decided to keep their names on the Republican ticket and simply not campaign.  This maneuver prevents the Republican Party from naming replacements for the two, and by not campaigning, the candidates virtually guarantee that the five who won in the Democratic primary will be elected onto the bench.  In essence, these two candidates are “taking one for the team,” and presumably will have their good sportsmanship remembered by the Democratic party in future elections.

Something similar happened in Philadelphia earlier this year.  As the Daily News reported:

[A]t an Aug. 25 party meeting, Republican leaders announced the withdrawal of the six judicial candidates on their ballot who had failed to also win the Democratic primary. And, they said, the GOP had decided to replace them on the Republican ballot with Democratic candidates who hadn’t won the Republican primary.

In other words, the Democratic team is now on both ballots and assured of victory.

So, here, too, political party maneuvering will determine who reaches the bench.  And this seems to be an example of the two competing parties actually working together — so much for partisan choice.

People who support the judicial election system often speak about the benefits of the democratic processes and letting the people choose.  But when political parties make ballot changes and have place holders on the ballot, do the voters really have a choice?  Aren’t the choices being made before anyone gets to the voting booth?

Is this really how we want to select judges?  Pennsylvania can do better than that.  While Merit Selection would not completely remove politics from the process (and may we be so bold as to posit that no system outside a dictatorship could), it would make a big improvement.

Two major Pennsylvania newspapers today featured editorials inspired by the Caperton decision, and both argued for replacing judicial elections with Merit Selection.  The Philadelphia Inquirer offers this stinging assessment of judicial elections:

The river of money that sloshes through campaigns to elect judges in Pennsylvania and Philadelphia has long raised questions about the quality of justice and one’s ability to remain impartial – especially when a big donor is party to a case. . . .

The whole process stinks and does little to bolster the quality of judges, while undermining public confidence in the judiciary.

That’s why the Supreme Court decision offers the best justification yet to reform the way Pennsylvanians select judges.

The Pittsburgh Post-Gazette’s editorial is equally critical of judicial elections:

The final note of depression is that this case flows from a system that makes no real sense and shows no sign of changing — the election of judges. As long as money is exchanged to support judicial candidates, the potential for bias will be there, no matter how little or extraordinary the sum.

This is a key point: even in cases involving parties or attorneys who made less eye-popping contributions to the judge’s campaign, the potential exists for bias or at least the perception that the playing field is not level.  No one should be worrying in court whether the opposing party or counsel contributed to the judge’s campaign.  The solution is clear: Merit Selection gets judges out of the fundraising business.

Two of Pennsylvania’s major newspapers, inspired by the Caperton v. Massey argument this week, are calling for Merit Selection.  In an editorial, the Philadelphia Inquirer argues:

Spending on statewide judicial races underscores the messy business involving the river of money that flows through judicial elections. Checks often are written by lawyers who then appear before judges – an apparent conflict that the majority of voters have told pollsters they find troubling. . . .

The antidote to those elections, of course, is to switch to the merit-based appointment of appellate judges. . . .

The Pittsburgh Post-Gazette concurred on its editorial page.  Quoting Justice Kennedy’s observation that “Our whole system is designed to ensure confidence in our judgments,” the Post-Gazette argued, “Of course, that system would be much better if judges were selected in merit-based systems not susceptible to campaign contributors.”

As we’ve stated repeatedly, we think recusal rules in cases involving campaign contributors is a good place to start to address the problem of money in judicial elections. That’s why we joined an amicus brief in the Caperton case.  But the better course of action – - and a more permanent solution — is to get appellate court judges out of the fundraising business altogether.  Merit Selection accomplishes that, and we’re heartened to see these public calls for real reform.