judgesonmerit.org

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.

An article in the Pittsburgh Tribune-Review offers a gloomy assessment about the upcoming judicial elections in Westmoreland County where voters are electing two new judges:

Look who’s talking about the upcoming election for two Westmoreland County judgeships.

Apparently nobody.

The disturbing evidence to support this conclusion: a scheduled candidate forum was canceled when two of the three candidates “said they weren’t interested.”  Why the lack of interest? They participated in a forum in advance of the primaries and it was recorded, so they claim it’s not necessary to do it again.  One candidate explained, “‘In a judicial campaign there are only so many questions you can ask.’”  Really, because it seems to us there’s a lot of things people might want to know about those who seek to become their judges.

Perhaps more troubling: another candidate claimed there was little public interest in having a candidate forum.  Choosing judges is a big responsibility; voters generally claim they want more information, not less.

Well, this is all very discouraging.  Two of three candidates and the “public” have determined it’s not necessary for voters to educate themselves in advance of the election.  Sleepy elections aren’t good for anyone, and they certainly don’t help voters make good decisions in the voting booth.  Maybe elections aren’t the right way to go about choosing judges.

An article in the Pittsburgh Tribune-Review explores how the Caperton decision is motivating discussion and dialouge in Pennsylvania.  According to Pennsylvania Chief Justice Ronald Castille , the decision “raises questions for an elected judiciary.”  He noted that Pennsylvania judgesand justices will need to explore whether recusal rules need to be rewritten.

But the issues go deeper than that.  People in Pennsylvania are seriously talking about bigger changes, incuding changing the way we select appellate court judges.  PMC Executive Director Lynn Marks explained, “‘[The Caperton decision] puts the issue of merit selection squarely on the radar screen of important issues for Pennsylvania to tackle.’”

State Representative Matt Smith, sponsor of the recently introduced Merit Selection legislation, concurred and noted that the United States’ Supreme Court’s Caperton decision is making some legislators turn to Merit Selection as the answer: “‘Even people who said as recently as a year ago they opposed this, now those folks see the need to eliminate money and politics from the process.’”  The best way to do that is Merit Selection.

We’ve posted here and here about how important it is to have “the right name” when running for judge.  In some cases, familiar names or “ethnic sounding” names have contributed to a candidate’s success at the polls.

Now, the Pittsburgh Tribune-Review reports that the victorious candidate in both the Republican and Democratic primaries for a district judge seat credits her success to having a good name.  Maureen McGraw-Desmet, daughter of sitting judge Elaine McGraw, whose seat is being filled by this election, notes the effect of name recognition in her electoral victory:

McGraw-Desmet conceded that name recognition helped her win 37 percent of the 2,536 votes cast in the Democratic primary last month and 30 percent of the 1,337 votes in the Republican primary. . . . “Undoubtedly, my mother’s good reputation as district judge went a long way toward helping me win.”

Judicial elections are too eaily influenced by factors unrelated to a candidate’s qualfications to serve — including ballot position, fundraising ability, political party support, and having “the right name.”

The hot topic in Pennsylvania is the effect of contributions to judicial campaigns. Two papers ran features on the issue this weekend.  The Wilkesbarre Times-Leader posed this question:

Two lawyers appear in court. One donated thousands to the judge’s campaign and the other gave nothing. Will they be treated the same?

Absolutely, say five of the seven elected Luzerne County judges who accepted campaign donations from lawyers.

But getting people to believe that is a problem, said Shira Goodman [of PMC].

The Times-Leader interviewed several sitting judges about campaing contributions from lawyers and law firms.  Although the judges explained that the contributions do not influence their decision-making in the court room, they acknowledged that as elections become more expensive and as public hostility to lawyers grows, things might have to change.  Judge Thomas Burke explained that those changes might include Merit Selection:

“If we reach the point where the perception is that lawyer contributions – or any outside contributions to judicial campaigns – pose an unfair advantage that will tilt the level playing field in favor of one side or another, then we likely have to consider alternatives to the present system.”

The Pittsburgh Tribune-Review also examined the perception created by contributions to judicial campaigns.  According to Chief Justice Ronald Castille:

“It’s not a healthy situation. . . . I’ve seen those polls where the public thinks campaign contributions affect judges. It’s not healthy for the system. We want people to have confidence in the system.”

The article explained that there are no rules that outright prohibit a judge from hearing a case in which a lawyer or party contributed to the campaign.  PMC Executive Director Lynn Marks explained that this causes a fundamental problem: “When you go to court, you shouldn’t be worried whether your lawyer gave a campaign contribution.”

It is time to get judges out of the fundraising business.  Merit Selection can accomplish this. Chief Justice Castille favors Merit Selection.  It’s time to let the people of Pennsylvania weigh in.