judgesonmerit.org

A newspaper in Fort-Worth, Texas published an editorial this past Friday challenging Texans to reconsider the way they select judges. Noting that Texas has the dubious distinction of being “among a handful of states that elect all their judges in partisan elections” (along with Pennsylvania, Alabama, West Virginia, Illinois, and Louisiana), the paper calls on its citizens to “use this next year to examine and debate a new judicial selection system that the state legislature can adopt when it meets in 2011.”

The editorial noted that in some states “where judicial elections have devolved into money-driven battles of ugly TV ads,” including Pennsylvania, “sentiment for change is building.” The perception of the role of money in elections is a primary reason for a change to Merit Selection. After citing the $4.5 million spent on the recent Supreme Court race in PA as reported by PMC, the paper noted:

The biggest problem is that judges and candidates for the bench must raise campaign money primarily from lawyers, groups and individuals who might have cases before those same courts. In statewide races, the sums can be enormous. It leaves the public wondering whether money is buying influence.

Referencing other problems with electing judges, the Star-Telegram asked rhetorically:

Who doesn’t want fairness, impartiality and justice when they go into court?

Who doesn’t want qualified, capable, independent judges deciding disputes?

Who honestly believes that the only way to achieve that is to elect judges through expensive campaigns that do more to undermine public confidence than to provide voter education about the judiciary?

Good questions. The first step in the process was set in motion at a hearing before the House Judiciary Committee’s Sub-Committee on Courts late last year.  If the state houses pass the legislation currently before committee in two consecutive sessions, the voters will have the ultimate say whether to amend the state constitution to make this important change to the way we select judges.

Dialogue and debate are critical when  important decisions are at stake.  That’s why it’s heartening to learn that people are talking about Merit Selection in different forums in several states.  This includes Pennsylvania, where the Courts Subcommittee of the House Judiciary Committee will soon be holding hearings on Merit Selection.

But Pennsylvania is not alone.  In West Virginia, the Independent Commission on Judicial Reform appointed by Governor Joe Manchin is hosting three public hearings, including one focused on Merit Selection.  As the West Virginia Record reports, Governor Manchin responded favorably to the announcement of the hearings:

Our judicial system is too important, not to act without listening to public concerns. . . . I thank the commission’s members for taking time out of their daily schedules to listen to West Virginians’ suggestions and ideas.

Texans, too, are talking about Merit Selection.  As reported in an op-ed in the Lake County Sun, the Caperton decision is renewing attention to the problems inherent in electing judges:

[Former Chief Justice] Phillips said the recent Supreme Court ruling should begin anew a national debate on how judges are chosen. [Chief Justice] Jefferson’s view was that the decision challenged Texans to do more to eliminate the perception that cash campaign contributions influence court decisions.

Op-ed author Willis Webb urges “Let the debate begin. . . again.”

We are looking forward to productive dialogue and debate in Pennsylvania.  The most important thing is to provide the opportunity for the public to weigh in on the critical question of how we select our appellate judges.

In the wake of Caperton, an editorial in the San Antonio Express-News urges Texas to adopt Merit Selection for its judges.  Leading the charge for reform in Texas is the current Chief Justice of the Texas Supreme Court, Wallace Jefferson.  His support for Merit Selection continues a tradition begun by his predecessors on the bench; he is “the third successive Texas Supreme Court chief justice to advocate reforming the state’s judicial selection process.”

Jefferson had warned of the danger posed by money-packed judicial elections even before the Caperton decision came down, telling the state legislature earlier this year: “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”  The Express-News‘ editorial board concurs:

The judiciary system depends on an even playing field to maintain fairness.  And the influence of money and partisanship must be reduced to deliver the even playing field that Texans deserve.

That’s something everyone deserves — including Pennsylvanians.  The way to achieve that even playing field is by getting judges out of the fundraising business. The way to do that is to adopt Merit Selection.

An editorial in the Austin American-Statesman minces no words in pointing out a major problem caused by electing judges:

Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .

[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”

How do you do that when you have to raise money. . . to run for judge in Texas?

This is a good question, and it’s one we all should be asking in Pennsylvania.  Of course, the answer to that question raises another pressing question:  if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?

The editorial notes that there is something we can do:

The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.

“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”

And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.

Voters in Pennsylvania can do something, too.  Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business.  We can only amend the constitution if the legislature twice passes the amendment and the public votes for it.  So, there is something we can do.  Let’s do it.

Texas Chief Justice Wallace Jefferson authored a very persuasive op-ed in the Dallas News urging the adoption of Merit Selection.  His description of the electoral process and his attribution of his own electoral success to factors irrelevant to his qualifications to serve make a strong case for judicial selection reform:

My parents gave me a good ballot name. My beautiful wife and three handsome sons adorned political advertisements on network television. But these things tell you nothing about my intellect, integrity or temperament.

My success depended primarily on a straight-ticket partisan vote.

Chief Justice Jefferson describes the seemingly senseless distribution of the counties he won and lost, and attributes the results to party affiliation.

He joins his predecessors in calling for Merit Selection, and he offers a compelling argument for change:

We must eliminate cynicism, money and partisanship in judicial selection. . . .  For the foreseeable future, I will win elections not because I am best suited for the job, but in spite of my qualifications. When a judge’s victory is based on party over principle, money over merit, cynicism over the rule of law, voters lose.

Well put.

We know that many, many people are concerned about the influence of campaign contributions on judicial decision-making.  But is there really a link or is it all just a question of perception?  The National Law Journal is reporting on a new study about the link between campaign contributions and decisions in the courtroom: “Is justice for sale? There is a strong relationship between campaign contributions and decisions by state Supreme Court judges in states that elect those judges, a recent study finds.”  The study found the link to be strong in states that elect judges in partisan contests.

The study by political scientists Chris Bonneau of the University of Pittsburgh and Damon Cann of Utah State University looked at three states — Nevada, Texas and Michigan.  Michigan and Texas use partisan elections to select judges, and Nevada uses nonpartisan elections. The influence of campaign contributions on decision-making — when other factors such as ideology were controlled for — was stronger in the partisan election states.

This is important information for Pennsylvanians to hear as we enter judicial election season.  Remember, we’re one of those states that uses partisan elections.  Isn’t it time to get judges out of the fundraising business?

The Austin-American Statesman reports that Texas Chief Justice Wallace Jefferson called for Merit Selection during his biennial State of the Judiciary address to the legislature:

Jefferson reserved the bulk of his speech for what he called “the corrosive influence of money” in judicial elections. Polls show that more than 80 percent of Texans believe campaign contributions influence courtroom events, he said.

“That’s an alarming figure — four out of five,” Jefferson said. “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”

Chief Justice Jefferson’s proposed solution is Merit Selection, and he follows in the footsteps of his predecessors who also criticized the judicial election system and called for reform.

As one court watcher, Craig McDonald, director of Texans for Public Justice, noted, ““Chief Justice Jefferson’s acknowledgement that the Texas judicial election system is broken is the first step in restoring faith in Texas courts.”  As in Pennsylvania, reform in Texas requires a constitutional amendment.  We hope the people will get to make the chance to decide for themselves whether to change the way judges are selected.

Stories out of Texas and New York reveal new twists on the old problem of contributions to judicial election campaigns.  We’ve written repeatedly about the inherent disconnect between the independence of the judiciary and using a judicial selection system that requires campaigns to raise huge sums of money.  Here are two reports of judges getting in trouble related to their campaign finances.

The Wall Street Journal’s Law Blog reports that a recently elected judge in Manhattan Surrogates Court has now been indicted and may face judicial misconduct charges based on a loan she received for her campaign.  Because the loan was not repaid by the time of the primary election, it converted into a gift and significantly exceeded campaign contribution limits.

Meanwhile, in Texas, Supreme Court Justice Nathan Hecht was just fined for violating campaign finance laws by failing to report discounted legal fees.  An editorial in the Austin American-Statesman argues:

Hecht didn’t list the discount on his campaign contribution report, though he’d written in a fundraising letter that he was getting in-kind legal help. He couldn’t report it because it was far more than the $30,000 limit on donations from one law firm. So he was hit with the rather minor fine for not reporting an illegal political contribution.

It was smelly enough that Hecht took the $168,000 discount from a firm with business before his court. Just as offensive was his letter to the state’s law firms, which have cases before his court, asking them to pay his legal bill. Hecht also had asked the state Legislature to pay the bill, but his support foundered when lawmakers learned that he had asked lawyers to pay it, too.

Hecht raked in $447,000 in political contributions after his letter went out to the state’s top law firms. While there is nothing illegal about that — lamentably — it is still unseemly for this state’s top judges to be begging money from the lawyers with cases before them.

Add to this the recent experience in Pennsylvania, where Philadelphia Traffic Court Judge Willie F. Singletary has just been found to have violated the Code of Judicial Conduct by directly soliciting funds for his election campaign and by promising improper conduct on the bench in return for donations.  It all leads to one conclusion: money should not be involved in the process of selecting judges.

The Latino Journal offers an interesting analysis of the recent judicial elections in Texas, looking at the relationship between candidates’ “ethnic sounding” names and their performance at the ballot box:

Like the four other Democrats running for statewide judicial offices, [Linda Reyna] Yañez faced serious obstacles: a lack of funding, voter indifference, and the fact that no Democrat has held a statewide office since 1994. But Yañez—along with Court of Criminal Appeals candidate J.R. Molina—faced an additional hurdle: ethnic bias. Some voters, with little else to go on in these low-profile races, appear to have cast a vote against Latino surnames.

The Latino Journal reports that The Texas Observer and Democratic political demographer Leland Beatty studied the election results and used regression analysis to conclude that race accounted for the vote discrepancies between the white and Latino candidates. The Latino Journal offers more evidence of the problem:

A similar bias against ethnic or funny-sounding names may have cost four Harris County judicial candidates, the only Democrats to lose there: Mekisha Murray, Ashish Mahendru, Andres Pereira and Goodwille Pierre. Murray, who is white, says she is frequently assumed to be black. Strangers shouldn’t make that mistake any more; she is changing her first name to “Jane,” mainly to help draw clients to her law practice, she told the Houston Chronicle. Yañez said she has no intention of changing her name. But, she noted, “We’ve got a long way to go in this state.”

As we’ve written here and here, this is not a new phenomenon — names take on much greater importance in judicial elections where voters have little relevant information to guide their decisions.

American Courthouse has tipped us off to a story on Texas Watchdog about a big donor to democratic judicial candidates in Texas — attorney Mikal Watts — who has an interesting view about the effect of his campaign contributions.  A letter Watts drafted to opposing counsel in a pending case argues that the parties should settle because:

[Watts] would prevail in an appeal because his law firm helped finance the campaigns of judges on the state’s 13th Court of Appeals in Corpus Christi. . . . “This court is comprised of six justices, all of whom are good Democrats,” Watts wrote in the letter. “The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm’s heavy support, and is a man who believes in the sanctity of jury verdicts.”

When called upon to explain the letter, Watts said he meant to convey that

the Texas Supreme Court wouldn’t hear the case if he won it on the appellate level. Why does that matter?  Watts explained that the lawyers he takes on typically will boast in their own right, saying, “It doesn’t matter what a jury is going to do because we’ve got nine angry Republicans on the Texas Supreme Court who will take away whatever a jury does.”

Texas Watchdog sums it up like this: “In other words, Watts seems to be saying that if he was bragging about rigging the system, it was only to give the other guys a taste of their own medicine.”

We already know that the public believes that campaign contributions affect decisions in the courtroom.  This incident demonstrates that the belief is shared by at least some of those who contribute to judicial campaigns.  How widespread is that belief? It’s hard to know, but what else explains the continuing escalation in campaign war chests?

We think the right way to solve this problem is to get money out of the process of choosing judges.