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.

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…

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.

On Monday December 7, the Courts Subcommittee of the House Judiciary Committee is holding a hearing on the pending Merit Selection legislation.  The hearing will be at 10:00 am in Room G50, Irvis Office, Capitol Building.

Testifying in support of implementing a Merit Selection system for the Pennsylvania appellate courts will be Robert Heim, Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts and PMCAction, J. Whyatt Mondesire of the NAACP, Dave Taylor of the Pennsylvania Manufacturers’ Association and Charlotte Glauser of the League of Women Voters of PA.

The hearing is the first step in the process of moving forward with legislation to amend the constitution.  We hope this process will allow Pennsylvanians to have an important dialogue about whether we should change the way we select appellate court judges.

We know from polls and surveys and from low voter turn-out that there is great concern about the role of money in judicial elections.  We also know that Pennsylvanians have been losing confidence in our courts and judges.  We believe Merit Selection — which focuses on getting the most qualified, fair and impartial judges on the appellate courts and gets judges out of the fundraising business — will be a significant factor in restoring public confidence in our courts.

Pennsylvania Governor Ed Rendell began a 3-month tour of the state in which he is calling for sweeping changes, intended to overhaul the notoriously broken political process in the state.  Appropriately, the Governor began his education campaign in Luzerne County, where judicial corruption of an unprecedented scale has damaged the public’s confidence in government at all levels, but particularly in the judiciary.

One of the three core-changes the Governor is targeting to purge corruption from state politics is to switch to merit selection of appellate court judges. Speaking to various audiences, including the Wilkes-Barre Times Leader editorial board, the Scranton Chamber of Commerce, and students at Wilkes University, the Governor highlighted two of the serious flaws with our current system of judicial selection: confusion in the voting booth, and money. The Times-Leader reported:

‘People don’t have a clue who they are voting for,’ Rendell said. ‘In an exit poll conducted five years ago, voters were asked five minutes after they voted to name any of the judicial candidates they voted for, and 50 percent couldn’t remember one.’”

Rendell also criticized political campaign donations to judges. ‘Who gives money to judicial candidates? It’s lawyers, for the most part,’ he said.”

The antidote the Governor proposed is to put qualified judges on the bench through a system of merit selection, where they will be untainted by the corrupting influence of money that Luzernites are, unfortunately, all too familiar with.

This message was music to the ears of Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts (PMC), an organization which has long been calling for Pennsylvania to adopt merit selection for the appellate courts. As PMC’s Lynn Marks explained:

‘Merit selection focuses on getting the most qualified candidates on the bench, offers an opportunity for qualified men and women of all backgrounds from all over Pennsylvania to serve and gets judges out of the fundraising business.’”

The other changes proposed in the Governor’s plan are to implement campaign-finance reform for elected politicians to limit the influence of lobbyists on the state’s lawmakers, and to prevent incumbent legislators from maintaining their power through absurd reapportionment of voting districts.

You will recall that in the just-passed race for a vacant seat on the state’s Supreme Court, vast sums of money were spent on negative advertising. According to many commentators, the race was particularly important to the political parties this year because of the reapportionment issue. In a state like ours, where judges hang party labels after their names (we are one of 6 states that elect judges at all levels in partisan elections), the Supreme Court’s role in deciding contested reapportionment questions becomes a political question and Supreme Court elections become tempting targets for the influence of big money.

We are delighted that Governor Rendell is bringing the problems with electing judges front and center, and think there is no better place to launch this message than a county that has felt first-hand what hell can be wrought by judges tainted by the influence of money.

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.””

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.”

We’ve been talking about the poisonous influence of money in judicial elections for a long time.  Now, the candidates are talking about it, too.

According to John Micek over at Capitol Ideas, Supreme Court candidate Joan Orie Melvin made this a topic of her address to the Press Club today.  She complained about the $1 million contributed to the campaign of her opponent Jack Panella by the Philadelphia Trial Lawyers’ PAC, the Committee for a Better Tomorrow. When asked about the $125,000 she also accepted from the PAC, she “claimed there was no comparison between the money she accepted from the trial bar and the money her competitor received.”

But Orie Melvin’s initial characterization of the contributions to her opponent offers a more convincing take on the perception contributions to judicial elections create: “”It’s pay-to-play, it’s justice for sale.’” This is surely what the public sees when the money is discussed, and it doesn’t matter how much is at issue.  It’s the fact of the contribution that makes an impression on the public.

Micek concludes his post with a discussion with PMC’s Shira Goodman:

What matters. . . is the public perception that money buys access to courtrooms – period.

“In our mind, enough is enough already,” she said.

We’ve always tried to make the point that judges are different from other public officials. As such, they should be selected differently. The way it stands now, we treat judicial candidates pretty much like other candidates.  Doing so makes it harder for the public — and even the judges themselves — to recognize the special role judges play in our system of government.  The more we blur the lines before judges reach the bench, the more blurred the lines stay.  Putting on the robe can’t be a single magic moment.  The entire process of becoming a judge should speak to the special nature of the judicial function.  Money is poison.