judgesonmerit.org

In a feature on campaign financing, Chicago Tribune correspondent Tim Jones notes that special interest groups are spending millions of dollars on state Supreme Court races, “with the intent of electing justices who will advance or protect their financial interests.” Jones summarizes the fallout from increasingly expensive, partisan contests in Wisconsin, West Virginia and Illinois, and discusses the effect this dramatically increased spending has on the appearance of judicial impartiality.

Nationally, spending for Supreme Court races was $165 million during the 1999-2007 election cycles, up from $62 million over the previous decade, according to the Justice at Stake Campaign. There has long been discomfort in legal circles about judges seeking election to the bench, given the potential appearance of judges being beholden to campaign contributors with matters before the court. As the number of multimillion-dollar court campaigns grow, those fears are taking shape.

As contributions to judicial campaigns increase, fundraising prowess is quickly becoming a critical skill for an aspiring judge. Because the bulk of these campaign funds come from lawyers and organizations that often litigate in state courts, the public is left to wonder if campaign cash has an influence on judicial rulings. It’s time to eliminate fundraising and campaign contributions from the judicial selection process. The best way to do that is to switch to Merit Selection.

The Wisconsin Democracy Campaign has looked into the campaign finance reports that candidates for the 2008 Wisconsin supreme court race have filed. A staggering $5.96 million was spent in the race — a record for Wisconsin. The lion’s share of that money was spent by special-interest groups: $4.8 million.

And what the special-interest groups did with that money was problematic: nasty attack ads and phony issue ads that distracted from the real issues in the election.

The previous Wisconsin supreme court spending record was $5.8 million, with $3.1 million spent by special interests. Every election, the spending levels ratchet up. More and more, voters are likely to perceive that a seat on the state supreme court is for sale.

Is the same increase in campaign spending in store for Pennsylvania’s next judicial elections? In 2007, there were two open seats on Pennsylvania’s supreme court, and the candidates raised close to $8 million. That doesn’t even include third-party independent spending, which became an issue when an out-of-state organization poured money into advertising on behalf on one candidate in the final weeks of the campaign.

Public perception of courts’ integrity and impartiality is important, and it suffers when so much money is spent on partisan elections. Merit Selection avoids this problem by taking money out of the equation, and its time has come both in Wisconsin and Pennsylvania.

An editorial in the Wisconsin State Journal expresses a fear that is increasingly heard in states where judges are elected: “Highly politicized elections and costly campaigns for Supreme Court seats have raised doubt about the justices’ ability to remain independent from partisan influence.”

This editorial comes on the heels of a controversial high court ruling in a tax case that involved parties who had contributed to recent election campaigns of sitting justices or their opponents. Although there are no specific allegations of bias or improper conduct, the question posed by the editorial reflects a growing public concern about the influence of campaign contributions: “Did Wisconsin get the best, impartial justice it could find, or did well-financed interest groups get the most partial justice their money could buy?”

The newspaper thinks that it’s high time in Wisconsin for Merit Selection of judges:

The partisan influence in the past two Supreme Court elections, and the impact on the public’s faith in impartial justice, are just a glimpse of what’s in store for Wisconsin unless the state reforms the way it chooses justices.

Merit Selection removes fundraising from the judicial selection process and goes a long way to restoring public confidence in the courts. We echo the editorial’s conclusion: “It’s time for merit selection.”

Are Wisconsin voters ready to choose Merit Selection over partisan elections of their judges? Deke Rivers, a blogger who writes about politics and life in Wisconsin, says that he used to think that electing judges was the way to go, but now he’s changed his mind:

While I have long felt that public election to the Supreme Court was superior to other methods of placing citizens on the bench, in light of the recent problems that show no signs of ending, I have started to alter my views. It is time to think about merit selection for the Supreme Court.

We agree. When special-interest groups spend millions of dollars supporting one candidate over another, the public’s perception of impartiality in the judiciary suffers.

Rivers continues:

We can no longer pretend there is not a credibility problem with the court. The electoral process is loaded with ways for special interests to almost insure that a candidate with an agenda is elected.

We appreciate seeing grass-roots support for Merit Selection from people in other states. And we look forward to hearing more from voters in Wisconsin and elsewhere about the impression they have of their courts after hotly contested partisan elections.

In a poignant letter published in the Leader-Telegram, one Wisconsin voter describes how disillusioned recent judicial elections have left him:

The last two state Supreme Court races have destroyed the respect I once had [for the judicial branch]. These races are by law supposed to be nonpartisan, but these last two races have been closer to a cattle auction than any elections I have ever seen.

This captures the essence of the problem with judicial elections. Because of the partisanship and money involved, regular people lose confidence in the impartiality of the judiciary. The third branch of government has neither the power of the sword nor the purse. Its power stems from the trust of the people. By electing judges, we squander that trust.

The Wisconsin voter laments, “Wisconsin may be the national leader of the worst examples of how not to select the top judicial leaders of state government.” Hopefully, Pennsylvanians will choose Merit Selection for the appellate courts and avoid similar disillusionment and further erosion in public confidence in the courts.

Wisconsin Supreme Court Chief Justice Shirley Abrahamson is worried about reelection. The vote won’t be held until next year, but in the aftermath of the record-setting 2007 and 2008 Wisconsin judicial elections, she’s already lining up bipartisan support and trying to raise funds. Neatly summing up the problems with judicial elections, her fundraising committee wrote:

“After the last two judicial campaigns, you probably don’t need a sermon on what’s wrong with the way we elected judges in this state, or the embarrassingly small number of people who vote in judicial elections, or the tenor and content of the campaign advertisements sponsored by some organizations… We all know how powerful those 30-second ads can be.”

Judicial elections are getting more expensive everywhere; just think what will happen in Pennsylvania next year.

The Wisconsin State Journal has an excellent editorial answering readers’ comments about its recent endorsement of Merit Selection. The editorial addresses many of the recurring arguments and myths we hear from opponents of judicial selection reform. For example:

Q. Why do you want to take away our right to elect our justices?

A: A better question is: Why should we use elections, designed to cater to partisan views and to reflect the will of the majority, to select justices who are supposed to be impartial and to protect the rights of the minority?

Think of it this way: Do you believe football fans should vote on who referees Green Bay Packers games? What happens when the Packers play the Bears? Will Chicago fans outvote the Wisconsin faithful?

Or should the National Football League select officials based on league evaluations of their expertise, impartiality and previous performance?

The piece addresses other common Merit misconceptions, including the roll of politics in Merit Selection, and the non-existent conspiracy to end elections for all government officials. It’s a must-read for anyone interested in learning more about Merit Selection.

In the aftermath of a fundraising record-setting election and mulitiple recusals by a new Justice seeking to avoid repeating earlier mistakes, Wisconsin is worried about the rising price of judicial elections. As former Supreme Court Justice Janine Geske explained, “the increasing amounts of money spent on campaigns that get more bitter every year is likely to hurt the court’s image.”

This is precisely our concern in Pennsylvania. Public perception is very important. Costly judicial elections do not generate confidence in the courts; instead they lead to decreased trust in the impartiality and fairness of the courts.

In an opinion piece in Madison’s Capital Times, Common Cause in Wisconsin director Jay Heck predicts “the most ugly and expensive state Supreme Court election in Wisconsin’s history in 2009.” This after last years’ race, which saw special interest groups outspending the candidates by a factor of 11 to 1 on television ads.

Pennsylvania is in a similar situation. In 2007, a Virginia-based special interest group spent over a million dollars on ads supporting one candidate for the Pennsylvania Supreme Court. Because the ads didn’t use key words like “vote for” or “elect,” the sponsoring group was found not to be subject to Pennsylvania’s regulations governing corporate campaign contributions.

The best way to combat the inevitable influx of special interest money is to get money out of the process of selecting appellate judges. Merit Selection of appellate judges makes qualifications, not campaign spending, the most important thing for a judicial candidate. We need to make this change in Pennsylvania, before our judicial elections become the ugly ones.

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.