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.

In our neighboring state of Ohio, Supreme Court justices are elected into office.  And with the Supreme Court making as many important decisions affecting political matters as it does, reports the Dayton Daily News, the design of the system itself creates a problem:

Some court observers say bias is inevitable when justices are elected by popular vote and receive campaign contributions that can run into the millions.

The retiring Chief Justice, Thomas Moyer, believes in the integrity of his Court and its decisions, but he acknowledged the public perception that “justice is for sale.”  The article quotes two well-known studies demonstrating that the perception is indeed wide-spread:

A 2008 American Bar Association poll found 79 percent of adults believed judges should not be allowed to accept money from “special interests.”

A 2002 poll sponsored by the Ohio League of Women Voters . . . found 83 percent of Ohio registered voters believe campaign contributions influence judges either to a great extent or somewhat.”

This trend is typical of a state that has popular elections of judges, especially one like Ohio, which from 1998-2008 spent over $20 million on judicial campaigns.  The paper cited Ohio as being the second largest spender on judicial elections in the last decade after Alabama (with $40.9 million raised).  Pennsylvania’s 2007 contest alone involved over $7.8 million in direct contributions to judicial candidates.

To combat the popular perception that judicial independence is threatened, Chief Justice Moyer is organizing a conference, along with the Ohio State Bar Association and the League of Women Voters of Ohio Education Fund, which he hopes will raise momentum for a change to Ohio’s electoral system.  We hope Justice O’Connor, who will be participating in the conference and is a fierce advocate of Merit Selection, can convince the state of the benefits of choosing judges on merit.

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 Knoxville News Sentinel urges Tennessee to keep using Merit Selection.  While acknowledging that the system could be amended somewhat to improve transparency and increase public input, the editorial argues that moving to judicial elections would be a serious mistake:

Judges are not legislators. Running for office statewide puts them in the position of having to raise money for elections – and allegiance to big-time donors perverts the ends, if not the means, of justice.

A recent Supreme Court election in Alabama cost $5 million, and a similar race in Illinois five years ago exceeded $9 million.

Imagine a statewide judicial election in Tennessee on that monetary scale. A judge winning such a contest will not create a constituency but obligations that will haunt him or her on the bench. Judges’ constituencies should be the law, reflected in the books on their shelves and their years of study and experience.

We agree, and share the concerns about the role of money in judicial elections. Of course, we’re in good company, as recent polls show the vast majority of the American public is concerned about the effect of campaign contributions on judicial decision-making.

The editorial closes by citing retired United States Supreme Court Justice Sandra Day O’Connor: “‘Justice is a lot like friendship; if you have to pay for it, it’s not worth much.’”  That pretty much sums up one of the best reasons to choose Merit Selection.

“We put cash in the courtrooms and it’s just wrong.” This is how former Supreme Court Justice Sandra Day O’Connor opened last week’s conference at Fordham Law School studying the judiciary and the courts.

Justice O’Connor has neatly summed up the problem with using partisan elections to select appellate judges. This system requires would-be judges to raise money from lawyers, law firms and other organizations that are likely to appear before them in the future. Who else would be interested enough to fund these increasingly expensive campaigns?

Of course, almost every judge and every contributor says that campaign contributions have no influence in the courtroom. But studies show that the public (and even some judges) believes the opposite to be true. This perception leads to a lack of public confidence in the judiciary and the courts. If the public doesn’t believe that our courts are fair and impartial, the courts can’t effectively serve the public.

Let’s get the cash out of the courtrooms. It’s time for Merit Selection.