judgesonmerit.org

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.

An editorial in the Times-Tribune of Scranton quotes PMC’s analysis of the cost of the 2009 Pennsylvania Supreme Court election, noting:

Pennsylvania once again leads the nation, as it did in the 2007-2008 election cycle, in the cost of statewide judicial elections. But there is a twist this time, in that the cost is in much more than money alone.

The editorial goes on to detail the heavy spending by the state political parties and other special interests, and notes that the political parties paid special attention this year because of the Supreme Court’s likely role in the upcoming dispute over legislative redistricting.

Then, the editorial recounts new allegations about improper fundraising activities by State Senator Jane Orie on behalf of her sister Joan Orie Melvin’s campaign for Supreme Court.  The editorial includes the Senator’s accusations that the probe is politically motivated by the District Attorney (son of a former Supreme Court justice who now works for the gaming industry) in retaliation for the Senator’s anti-gambling stance.  The editorial astutely observes:

All of that is the sort of inside political baseball for which Pennsylvania is infamous. But the point is that Pennsylvanians shouldn’t have to worry about those back stories if they have business before an appellate court.

This, of course, is the key point.  When you go to court to have your disputes resolved, you want them resolved according to the law and the facts.  Political calculations, campaign donations, personal vendettas — none of this has any role in the way judges are supposed to decide cases. The problem is, electing appellate court judges the same way we elect political office holders makes it hard to believe that justice and the law prevail in our courtrooms.

The editorial closes with this call to action, which we hope will soon be heeded:

Bills are pending in both houses to begin the process of amending the state constitution to establish merit appointment of appellate judges. Lawmakers should initiate the change.

In a letter to the Philadelphia Inquirer, PMC’s Shira Goodman argues that Merit Selection ends the money game that is so much a part of judicial elections.  Remember, much of the money that funds appellate court election campaigns comes from lawyers, law firms, businesses, unions and others with cases before the appellate courts.  In addition, the political parties often — like in this year’s Supreme Court race — spend big money to elect their favored candidates.

Merit selection eliminates all this spending and, most importantly, stops the flow of money from lawyers to the campaigns of judges likely to rule on their cases.

The letter also focused on the role of the public in a Merit Selection process, including: participation on the nominating commission; providing information about applicants for appellate court vacancies to the nominating commission, the Governor and the Senate during the application/evaluation, nomination and confirmation processes; and voting in retention elections to determine if judges should remain on the bench.

Critically, only the people of Pennsylvania can change the way we select appellate court judges:

Pennsylvania can change the way we select appellate judges, but only if the people vote to amend the constitution. It is time to let Pennsylvanians make this decision.

On Monday, the Courts Subcommittee of the House Judiciary Committee held a hearing on the pending Merit Selection legislation.  Representative Josh Shapiro (D, Montgomery) chaired the hearing in Subcommittee Chair Don Walko’s (D, Allegheny) absence. Also attending were Minority Subcommittee Chair Tom Creighton (R, Lancaster), bill sponsor Matt Smith (D, Allegheny), Mike Vereb (R, Montgomery), Joseph Petrarca (D, Armstrong), Kathy Manderino (D, Philadelphia and Montgomery), Kate Harper (R, Montgomery), Glen Grell (R, Cumberland) and Deberah Kula (D, Fayette and Westmoreland).

The hearing was very informative.  Nearly all who testified — both those who supported the legislation and those who opposed it in some way — agreed that there are problems with the current electoral system, notably the role of money in the process.  This consensus is significant and reflects the public’s belief in the corrupting influence of money in the process.

Testifying on behalf of the legislation were PMC and PMCAction’s Bob Heim, Lynn Marks and Shira Goodman; Dave Taylor of the Pennsylvania Manufacturer’s Association; and Charlotte Glauser of the League of Women Voters of PA.  J. Whyatt Mondesire of the NAACP was scheduled to present testimony in support of Merit Selection but was unable to attend.

In the next few days, we will upload copies of the testimony presented at the hearing, but we offer a few highlights.  Bob Heim, Chair of PMC, focused on the need for reform and the importance of getting judges out of the fundraising business. He highlighted the public’s growing concern that money can influence judicial decisionmaking and called on the legislature to allow Pennsylvanians to decide whether to change the way we select appellate court judges.

Charlotte Glauser of the League of Women Voters of PA explained the League’s long standing support for Merit Selection, urging “Passage of these bills will do much to restore the public image of independence of Pennsylvania’s appellate court system.”

PMA’s Dave Taylor explained that Merit Selection would “improve the professionalism, integrity, and independence of the judicial branch of goverment.” Taylor explained:

By combining elements of elective and appointive systems for nominating our appellate court judges, Pennsylvania can uphold the professionalism of the courts and protect our jurists from the conflicts of interest that inevitably arise from political fundraising and campaigning.

Testifying in opposition were Tom Foley III of the Pennsylvania Association for Justice (formerly the Pennsylvania Association of Trial Lawyers), Professor Michael Dimino of Widener University, and Rick Bloomingdale, Secretary Treasuer of the AFL-CIO.  Professor Dimino actually endorsed a Merit Selection for the Superior and Commonwealth Courts and even for the trial level courts, but argued against Merit Selection for the Supreme Court.

Rick Bloomingdale of the AFL-CIO noted the organization’s current opposition to the legislation, but expressed a willingness to support an amended version of a Merit Selection plan. This is significant, and we are hopeful that as the Committee considers the bill, we can work with our traditional partners and with groups such as the AFL-CIO to design the best system of judicial selection for the Pennsylvania appellate courts.

In a publicly released letter to bill sponsor Matt Smith, Governor Rendell again expressed his strong support for Merit Selection:

I have said on many occasions that our system of electing appellate judges makes no sense. It is no secret that there is great concern in Pennsylvania about the role of money in judicial elections. Current law could allow judicial candidates to accept indirect contributions from lawyers and special interest groups that may eventually have to argue a case before that judicial candidate. It is no wonder that Pennsylvanians have been losing faith in our courts and our judges.

PMC and PMCAction are grateful to the House Judiciary Committee and its Subcommittee on Courts for the opportunity to present public testimony at yesterday’s hearing. We thank the bill sponsors, Representatives Smith and Will Gabig (R, Cumberland), for their leadership as well as all the representatives who attended the hearing.  We look forward to working together to achieve a better way for Pennsylvanians to select appellate court judges.

In an editorial in today’s Philadelphia Daily News, PMC offers this review of the 2009 judicial elections:

Once again, judicial elections have left a bad taste in the mouth of Pennsylvania voters. It’s as if we all watched from the sidelines as some celebrities threw an expensive party, got into a fistfight and traded barbs in the tabloids the morning after. We were entertained for a few minutes and then wondered what it all had to with us.

This conclusion follows from what became a hard-fought election with candidates “going negative” in their advertising and arguing about the impact of campaign contributions.  Record sums were raised and spent, both by the candidates and third-parties, including the political parties and special interest political action committees.

It was enough to turn voters off, and it did: “There was a lot of noise leading up to Election Day, but voter turnout was a record low. In Philadelphia, it was appalling – less than 12 percent of registered voters.”

As the op-ed argues, this is a big problem, because  “choosing judges IS important, and their decisions DO affect our lives. Selecting judges deserves a process worthy of the importance of the decision.”  The solution: Merit Selection for the appellate courts.

The Harrisburg Patriot-News featured an op-ed by PMC’s Lynn Marks and Shira Goodman this weekend. The op-ed opens with a question about the money spent in the election — millions by the candidates and perhaps millions more by political parties and other third-party special interests:

Only 20 percent of registered voters voted for a Supreme Court candidate. So, what did that money buy? Diminishing public confidence in our court system.

Marks and Goodman go on to explain the problems caused by the role of money in the electoral process and the inability of the recusal system to address these problems.

Marks and Goodman conclude, “The solution to the problem of money and judges is to get money out of the judicial selection system. The only way to do that effectively is to change the way we pick appellate judges.”  They explain why other proposals, such as campaign finance reform or public financing, would not be as effective “because both maintain the role of money in the selection process.”

The real solution is Merit Selection.  “With a merit selection system, appellate court candidates don’t have to raise money from those who are likely to appear before them. This results in public confidence in the process and trust that the scales of justice are in balance. And, that, in the words of that Mastercard commercial, “is priceless.””

There are many judicial seats up for election, including a seat on the Supreme Court, four seats on the Superior Court and two seats on the Commonwealth Court.  In addition, many trial level seats are up for election, and judges across the Commonwealth are standing for retention. Visit PMC’s Current Elections page for more information, and don’t forget to vote!