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Lynn Marks, PMC’s executive director, joined the moderator of Pennsylvania Newsmakers, Terry Madonna, on Sunday to discuss Merit Selection and the need for judicial selection reform in Pa.

Marks outlined some of the problems inherent in judicial elections:

Just think of yourself in court and then you start wondering, ‘Gee I wonder if Terry made a large contribution to one of those judges. And then I think, ‘I wonder if Terry’s lawyer made contribution, and then I think, ‘Gee I hope my lawyer made a huge contribution.’ I shouldn’t even be thinking that when I’m in a court of justice.

Merit Selection takes judges out of the fundraising business.  Judicial campaigns would not have to raise money from lawyers, law firms and organizations that later could appear before them in court.

Currently, this overlap between contributors to judicial campaigns and frequent participants in court is a major cause of concern for the public.  It creates the perception that judges are beholden to special interests, which undermines the integrity of the courts.

Under Merit Selection, this fundraising cycle would be broken, and people would not have to question whether a judge might be influenced by a campaign contributor or supporter.  As Marks explained,

“That’s all we’re asking for, is for. . . [litigants] to feel like they’re getting a fair shake in court.”

PMC’s Lynn Marks appears on this week’s Newsmakers with Terry Madonna to discuss Merit Selection of appellate court judges. The show follows PMC’s recent release of a public opinion poll demonstrating widespread support for Merit Selection and an overwhelming desire to have the issue put to a public referendum.

Here is a list of channels airing the show:

The Brennan Center for Justice at NYU School of Law has published a new article analyzing the negative impact the recent Supreme Court decision Citizens United v. FEC will likely have on state judicial races.  In that case, the Court overturned a long-standing ban prohibiting corporate expenditures in elections.  As a result of the ruling, corporations and unions will now be permitted to spend directly from their coffers to support or oppose candidates for elected office.  These include candidates for state judicial benches.

Buying Justice: The Impact of Citizens United on Judicial Elections, penned by Adam Skaggs, counsel at the Brennan Centers Democracy Program, reviews the recent trends in judicial election spending, surveys several states in which the decision is likely to have the greatest impact, and offers solutions to combat the deleterious effects of the ruling.

Skaggs beings with a telling quote from retired Supreme Court Justice Sandra Day OConnor, a long-time opponent of judicial elections:

If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.

[After Citizens United], we can anticipate labor unions and trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.

Based on numerous polls conducted across the country over the past ten years, it would appear that both the perception and the reality of judicial impartiality were imperiled even before Citizens United.  Skaggs cites a  poll showing that nine out of ten Pennsylvania voters believed large campaign contributions influences judicial decisions. In fact, Skaggs flags Pennsylvania as one state in which current problems with judicial races will only be exacerbated due to the Courts decision:

Before Citizens United, Pennsylvania prohibited corporations from making any contribution or expenditure in connection with the election of any candidate or for any political purpose whatever.  But that has not kept big money out of judicial elections in the Keystone State.  In 2009, Democrat Jack Panella broke a state record for individual fund-raising spending more than $2.6 million dollars but still lost to Republican Joan Orie Melvin.  Orie Melvin challenged Panella over his connections to his campaign supporters, lambasting him for taking $1 million from the Philadelphia Trial Lawyers Association and asking, ‘Is it pay-to-play? Is it justice for sale? I don’t know, but it sure sounds suspect.‘

The report spotlights PMC’s advocacy for a switch to a merit-based system of selection for the states appellate level judges:

Editorial boards across Pennsylvania have echoed the calls to adopt merit selection; in the words of the Philadelphia Inquirer, Pennsylvanians would have more faith in their judiciary without legal scandals and campaign-donor conflicts arising from judicial elections.

This morning at 9:30 PMC Executive Director Lynn Marks will appear on WITF’s Smart Talk (89.5 and 93.33 FM Harrisburg)  to discuss Merit Selection and the Governor’s call for the legislature to move the legislation.

Passage by the legislature is only the first step in the lengthy constitutional amendment process.  If the legislation passes this session, it must pass again during the 2011-2012 session.  Then, it would go on the ballot for the public to vote in a referendum.  We can only change the way we select appellate judges if the people  of Pennsylvania vote to do so.  We hope the public will get the chance to make that decision.

Yesterday’s call by Governor Rendell for the legislature to pass the pending Merit Selection bills has got Pennsylvania talking.  An editorial in the Philadelphia Daily News shares the Governor’s sense of urgency to pass the legislation and argues: “Imagine if judges didn’t have to rely on the kindness of ward leaders, or the luck of ballot position.”

In addition, the Philadelphia Inquirer has a full report on the news conference and quotes the Governor’s exclamation that there is “no excuse for not moving the legislation this year and putting the question on the ballot by late 2011.” The Inquirer also quoted PMC Executive Director Lynn Marks who explained that Merit Selection is designed to get the most qualified, fair and independent people on the appellate courts.

The Pittsburgh Post-Gazette notes that the Governor is seeking to give a jumpstart to the Merit Selection legislation.  The article quotes local State Senator Jim Ferlo on the need for reform: “The impact of the electoral system on the impartiality of judges puts the fairness of our courts in question, and now requires judicial candidates … to raise millions of dollars to run their campaigns.”

Additional coverage of the Governor’s press conference and the call for action can be found at WHYY 91 FM, the Citizens’ Voice, the Times Leader, the Patriot-News, and Gavel Grab.

KYW 1060 reported on the American Judicature Society report on the degree of overlap between contributors to the campaigns of Pennsylvania Supreme Court justices and those appearing before those justices in Court.

The news report quoted PMC’s Lynn Marks explaining that although the report does not draw any conclusions about whether the contributions influenced judicial decisionmaking, “Each dollar raised and spent raises doubts in the public’s mind about whether or not justice is for sale.”

The report quoted Pennsylvania’s Chief Justice Castille’s response:

‘I actually share that opinion to some degree myself. . . . The money does have an outward appearance of a lack of fairness in the system.’ Castille says that’s one of the drawbacks to elected judges.

We very much agree with this assessment and hope Pennsylvanians will have the opportunity to determine whether to change how we select appellate court judges.

PMC Deputy Director Shira Goodman attended this week’s Georgetown Law-Aspen Institute conference focused on selecting judges in the wake of the Caperton and Citizens United decisions. Goodman reports that there were two clear messages: First, judicial elections are about to become even more expensive, partisan and divisive. The second and more optimistic message is that now is the time for judicial selection reform.

Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

A recent report by the nonprofit, nonpartisan National Institute for Money in State Politics shows that money and incumbency were the two largest factors in determining the results of judicial elections.  Candidates running in partisan elections, where contenders are backed by political parties, averaged as much as triple the money raised by those running in non-partisan or retention elections

The study reinforces what has long been known to critics of Pennsylvania’s own system of electing judges in partisan contests.  Namely, that money plays an overly-determinative role in judicial elections.  Oftentimes this money comes in the form of campaign donations from individuals who may subsequently appear before the elected judge.

Incidentally, the Institute study comes on the heels of a report by PMC  on the record amounts spent in the most recent Supreme Court race. The election cost at least $4.5 million and possibly more than twice that when all of the political party spending is accounted for.

Fundraising prowess weighs heavily on a candidate’ s ability to win an election, and may add some value to the consideration of a political candidate, but should bear little on one’s capacity to be a fair and effective judge.   A switch to Merit Selection would eliminate the influence of money on judicial selection and shift the focus back to finding the most qualified individuals for the job.

An editorial in today’s Philadelphia Daily News urges that Merit Selection is a much needed reform.  Discussing the very expensive 2009 Supreme Court elections and the Luzerne County Courthouse scandal,  the Daily News writes:

Welcome to the darker side of the Pennsylvania judiciary, a side that will continue to stay dark as long as we elect judges. . . .

The editorial discusses the danger of fundraising in judicial campaigns, the too important role of the political parties in determining who reaches the bench, and the lack of relevant information for voters trying to decide who should be a judge.

The editorial closes with a shout-out to PMC:

The need for reform is clear. The advocacy group Pennsylvanians for Modern Courts has been a steady voice calling for merit selection through a constitutional amendment.

The Philadelphia Inquirer today called for judicial selection reform, arguing that “The case for reforming the way Pennsylvania selects its judges keeps getting stronger.”  Citing PMC’s analysis of the fundraising and spending in the 2009 Supreme Court election, the editorial focuses on the poisonous role of money in judicial elections:

It’s the troubling influence of campaign fund-raising that continues to create the most concern about electing judges in head-to-head partisan contests.

Most Pennsylvanians say they suspect that justice is for sale because candidates for judgeships have to raise campaign funds. The big-spending 2009 Supreme Court election between Republican Joan Orie Melvin and Democrat Jack Panella did nothing to restore their fraying faith in an impartial judiciary.

The Inquirer urges action, and we hope the call is heeded:

The course for state policymakers is clear: Step in and reform judicial selection, or continue to preside over a system that erodes public confidence in justice as it’s dispensed in Pennsylvania.