judgesonmerit.org

Gordon L. Doerfer, president of the American Judicature Society (AJS), has issued a statement in response to the Wall Street Journal’s most recent attack on Merit Selection. In this statement, AJS sets the record straight about the composition of judicial nominating commissions and the history of success of state Merit Selection systems.

AJS points out that the Journal’s recent characterization of the Florida and Missouri nominating commissions as dominated by plaintiffs’ trial lawyers is wrong. In fact, lawyers of all types are involved in selecting or suggesting lawyer members of these commissions. AJS goes on to explain that a recent survey of corporate attorneys revealed that they rank state courts selected through Merit Selection uniformly higher than state courts selected by partisan elections. It is a myth that judicial nominating commissions are dominated by a particular constituency or segment of the bar.  In fact, most nominating commissions include several seats for nonlawyers.

The cornerstone of Merit Selection is the use of a nominating commission to screen and evaluate candidates. This is the special element lacking in both elective and purely appointive systems.

A blanket condemnation of judicial nominating commissions is irresponsible and misleading. It also demeans the work of the dedicated commissioners, all of whom serve without compensation, and calls into questions the judgment of the many governors of all political parties who rely upon them to nominate the best qualified judges.

Thanks, AJS, for setting the record straight about judicial nominating commissions.

On August 23, the WSJ continued its criticism of Merit Selection, to which Gavel Grab posted a thoughtful and thought-provoking response. Gavel Grab poses an important question:

As the Journal continues its critique of merit selection, it should perhaps acknowledge the downsides of its own position. If the public has concluded that big-money politics can twist justice, is that a belief that the Journal would like to see become more common?

This is a major public problem on which the Journal has been, and remains, stubbornly silent. And it is not a liberal or conservative issue, either.

Judges should not be in the fundraising business, but elections require that they be. As fundraising records continue to be broken in judicial elections throughout the country, public confidence in the courts continues to erode. We need a better way to select appellate judges, one that gets them out of the fundraising business. Merit Selection accomplishes this.

Last week, we wrote about the Wall Street Journal’s August 14th editorial criticizing Merit Selection. Although the Journal did publish several letters in response (including letters from the American Bar Association and Justice At Stake), unfortunately the letter submitted by PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach was not among them. Therefore, we are publishing it here:

Your editorial “The ABA Plots a Judicial Coup” (August 14, 2008) mischaracterizes merit selection systems and pointedly ignores how successful merit selection has been on the state level in avoiding the many infirmities of elective systems. We write to clarify the benefits of merit selection at the state level, without taking a position on the American Bar Association’s proposal regarding the federal judicial appointment process.

Many judges will tell you they abhor having to raise money to run in judicial elections — with the money coming from the very same lawyers, organizations and special interest groups that may later appear before them. Polls understandably demonstrate the terrible public perception that results from this fundraising, but elections require money and judges have little choice. Many who would make good judges refuse to participate in the process for just this reason. Moreover, it is difficult for the voters to find relevant information about the candidates who are running for the appellate bench. It just doesn’t make sense to use the electoral system to select appellate judges.

Your broad-brush criticism of merit selection systems suggests that you actually would prefer a system that puts on the bench only judges of certain political and philosophical leanings – provided that they lean the right way. This isn’t democratic or populist - it’s seeking a system that can best be manipulated by powerful political interests on either side. Merit selection is designed to get the most highly qualified, fair and impartial judges on the bench, not just judges from one side of the political spectrum. In fact, judges should not owe an allegiance to any political party or constituency. Their sole fealty should be to the law.

Many states that use merit selection include lawyers and nonlawyers on their nominating commissions. In fact, under a proposal being considered in the Pennsylvania state legislature, doctors, fire fighters, teachers, used car salesmen and others would have an opportunity to serve on the nominating commission. This provision for “public members” or regular folks demonstrates an appreciation for the important perspective nonlawyers bring to the process of examining candidates for the bench.

Finally, you neglect to report that the efforts to “undo” merit selection are facing great opposition in Tennessee, Missouri and Kansas. Once states or counties eliminate expensive and divisive partisan elections for judges, they are loath to turn back. Merit selection works at the state level and that is why we are seeking to bring merit selection to the statewide appellate courts of Pennsylvania.

Merit Selection is a favorite target of those who worry that a process that removes money from judicial selection and weakens the role of political parties will keep the critics’ preferred candidates from reaching the bench. And once again, the Wall Street Journal criticizes Merit Selection in a thinly veiled call for more politically conservative judges to staff our federal and state courts.

PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach submitted a letter to the editor in response, arguing that the editorial mischaracterizes Merit Selection and ignores how successful it has been at the state level. (We are waiting to see whether the letter will be published before posting the full text.)

Merit Selection is designed to get the most highly qualified, fair and impartial judges on the bench, not to pack the courts with devotees of a particular political or philosophical leaning. While claiming to be supporters of judicial accountability, critics of Merit Selection often are simply concerned that their preferred candidates won’t make it through the process. That doesn’t seem to us to be a good reason to oppose a system that gets judges out of the fundraising business, emphasizes qualifications, skill and experience and results in judiciaries that reflect the diversity of the states from which they are drawn.

Our friends at Gavel Grab offer their thoughts on the editorial, wisely asking, ” Leaving aside the editorial’s many factual errors. . . the real question is this: what is so wrong with getting community input before nominating new judges?” The answer, of course, is that nothing is wrong with that, as the many successful state Merit Selection systems demonstrate. We hope Pennsylvania soon will join their number and implement Merit Selection for the appellate courts.