judgesonmerit.org

Although change comes slowly in Pennsylvania, especially when it involves amending the constitution, it’s nice to know that we’re not alone in worrying about judicial elections. It’s a common concern in states that elect their appellate judges, especially as the fundraising associated with judicial campaigns continues to rise. Folks in Alabama, Wisconsin and West Virginia have been raising similar concerns this campaign season. They are concluding that Merit Selection is a better way to pick appellate court judges.

The problems caused in West Virginia by one company’s contributions to judicial election campaigns continue to plague the state. Now, even though one of the Justices involved lost his reelection bid, there is an effort to have a case involving that contributor reexamined, with a focus on whether another Justice should have recused from the case. Theodore B. Olson, former solicitor general of the United States and private counsel to Ronald Reagan and George W. Bush, will spearhead efforts to get the issue before the United States Supreme Court.

In a press release announcing his involvement with the case, Mr. Olson succinctly sums up the crisis of public confidence created by partisan judicial elections:

The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.

We think the best solution to the problem is to get appellate judges out of the fundraising business altogether. The way to do this is Merit Selection.

The West Virginia Supreme Court elections continue to make the news. Earlier we wrote about justices forced to recuse (or not) from cases involving some big campaign donors. Now, at least one justice is talking about the realities of campaign fundraising in the Mountain State. Supreme Court Chief Justice Elliot Maynard has criticized the fact that a lot of attention is paid to business donations to judicial campaigns, while contributions from lawyers and law firms go largely unreported. Justice Maynard called these different levels of scrutiny “the worst hypocrisy.”

But even such concern can’t compete with the realities of judicial elections. According to the Charleston Gazette, a new study of campaign contributions shows that Justice Maynard has raised $586,873. Of that total, $134,050 was contributed by lawyers and their relatives. Maynard is not alone — one-third of the money contributed to the five candidates running in the primaries next week has come from lawyers.

As we’ve said all along, this kind of big-money politics can create the perception that “justice is for sale.” Litigants, facing opponents who may have donated thousands of dollars to the campaign of a judge or justice, might reasonably worry about whether they will be treated fairly. Even if the ruling is completely fair and in accordance with the law, the question may linger. Did money play a part in the decision?

Pennsylvania is facing a similar crisis of faith in the judiciary. As contributions to judicial campaigns increase, it gets harder for Pennsylvania citizens to trust that justice is being fairly administered. Whether it is or not is immaterial. The perception itself can potentially taint every case that goes before our courts.

The only way to combat the perception that “justice for sale” is to get money out of the judicial selection process. Merit Selection makes strong qualifications, not fundraising prowess, the most important credential for a judicial candidate. It’s time we got judges out of the fundraising business.

An opinion piece in The Harvard Crimson points out that four states are in the midst of partisan elections to pick judges for their highest courts. In calling for a move away from partisan election of judges, the author highlights the problem of “judicial candidates [receiving] contributions from firms or attorneys who will potentially present cases, or at least play a role, in their prospective courtrooms”

We agree with the author when she says that we need to reform the way we select judges. Merit Selection gets appellate judges out of the fundraising business. It will help to ensure a fair and impartial judiciary, free from the appearance of bias.

One of the big reasons we need Merit Selection is to get money and fundraising out of the process of picking appellate judges. How much do these elections cost? Last year four candidates running for two open seats on the Pa. Supreme Court raised $7.85 million. That’s a record in Pennsylvania. And, much of that money came from lawyers, law firms, and organizations — like unions and business organizations — that often have cases in the appellate courts.

This is a problem because in Pennsylvania (and other states) judges don’t have to step aside (”recuse” in legal terms) in cases where the parties or lawyers gave money to help them get elected. That means that a judge can make the decision in a case that involves a lawyer or party who gave money, even a lot of money, to his or her election campaign.

This is a key cause of the increasingly widespread public belief that campaign contributions affect decisions made in the courtroom. This is not a problem unique to Pennsylvania. Illinois, Wisconsin, and West Virginia have all recently been in the news because of cases involving big donors to Supreme Court justices’ campaigns.

We think the solution is to get judges out of the fundraising business. The best way to do this is Merit Selection.

  The West Virginia Supreme Court is embroiled in a major scandal, involving a multi-million dollar election, and multiple recusals from the trial of a big campaign donor. The Huntington Herald-Dispatch sees the whole mess as a clear reason for the state to adopt a Merit Selection system. In their words, “a judiciary independent of elections is the best safeguard against the influence of… money.” Read the complete editorial here.

  As a scandal unfolds in the West Virginia Supreme Court, an editorial in the Christian Science Monitor looks to Missouri as a model for freeing state judiciaries from the influence of big campaign donations. You can read the entire editorial here.