judgesonmerit.org

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

In the wake of the Caperton decision, WHYY’s Chris Satullo criticizes Pennsylvania’s judicial election system:

Here’s what electing judges does. It forces them to beg campaign cash from the very people who would appear before them in court. It forces voters to choose from clogged slates of unknown names. Not surprisingly, those voters fall back on dumb factors such as ballot position, ethnic surnames and who bought the most TV ads.

Judicial elections have become costly showdowns between corporate and union lobbies, with clueless voters in the crossfire.

Satullo concedes Merit Selection is preferable, but he also seeks a way to improve judicial elections.  His proposal is to use a Merit Selection commission to preclear candidates, and only those deemed qualified would then be eligible to run for election.  In addition to publicizing the commission’s findings, Satullo would require that the candidates’ campaign donors also be made public.

Satullo’s proposal may help ensure that only qualified candidates reach the bench and that the public knows more about the candidates running, but it does not solve the problems caused when money and judicial campaigns mix.  Candidates would still need to raise money, and much of the money would still come from lawyers and entities that appear frequently in the state courts.  Satullo’s requirement that donors be publicly identified does not solve the problem: that information is publicly available now and its availability is not reducing the public’s perception that campaign contributions may have an unacceptable influence on later judicial decision-making.

We agree with Satullo that change is needed, but we find Merit Selection, a hybrid combining the best parts of appointment and elective systems and adding the first-level citizens-based screening commission, is the better solution.  As Satullo says: “It’s a hybrid. And, as everybody knows, hybrids run cleaner and offer better mileage.”

WHYY, the NPR affiliate in Philadelphia, interviewed PMC Associate Director Shira Goodman about the Caperton v. Massey case, its possible impact on judicial elections on Pennsylvania, and the efforts to bring Merit Selection to the Pennsylvania appellate courts.  To listen,Download Audio (mp3) here.