Jul 10 2014

While not Perfect, Pennsylvania Could Learn from Maryland

Published by under Merit Selection

Fundraising, gaining political support, and campaigning.  These tasks, normally reserved for politicians running for political office, also exist within the non-political realm of the judiciary in the form of judicial elections.

 

Pennsylvania’s system of judicial elections creates a political atmosphere within the judicial branch that should not exist.  Instead of focusing squarely on the rule of law, judges have to focus on tasks usually left to the executive and legislative branches.

 

Some opponents of judicial selection reform in Pennsylvania argue that because we have not yet seen any catastrophic results from electing all our judges, there is no reason to reform the system. However, as recent developments in Maryland demonstrate, there is no guarantee that respectful, informative and clean judicial elections will continue.

 

According to an article in the Washington Post, this year’s trial court elections in Maryland have become unexpectedly contentious due to concerns about the conduct and connections of one of the judicial candidates. In fact, the campaign has become so political, some reformers are pushing to change the way judges are selected.

 

In Maryland, appellate court judges are selected through a merit selection process while trial court judges are elected. Reformers are using this election cycle as an example as to why all Maryland judges should be selected through merit selection.

 

Judicial selection should be a process of finding the most qualified, fair and impartial judges to sit on the bench. It should not rely on fundraising skills, political connections, or ability to successfully campaign.  The best fundraiser or campaigner is not necessarily the best judge.

 

Maryland is light years ahead of Pennsylvania in reforming their judicial selection process, but there is still room to further improve it.

 

It is time for Pennsylvania to follow suit and rid itself of judicial elections so it too can have the best decision makers on the bench.

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Jun 27 2014

In the Right Spotlight

Can you name at least two candidates in any of the recent judicial elections in your district or state? Do you know something meaningful about the platform they ran on? Even if you can answer the first question, the second question might leave you stumped.

Public offices such as governor, representative and senator get more than their share of the media’s attention. When it comes to meaningful coverage of judicial elections, however, the public is often left in the dark. In the few cases when judicial elections gain wide spread media attention, it is usually for the wrong reasons, as was the case for the recent Supreme Court race in North Carolina. So then, the public is either not fully aware of judicial candidates or are left to make their decisions on television ads funded by partisan interest groups. In both cases, the public suffers.

Pennsylvania is currently one of only six states that elect all their judges in partisan elections. With the growing involvement of interest groups and their money, judicial campaigns are beginning to look more and more like political campaigns. Issues relevant to the bench, such as the candidate’s experience and track record of ruling by the law, are replaced by negative attacks on opponents and the political affiliation of candidates.

Compared to political leaders, judges are the public officials that citizens are most likely to come in direct contact with in their everyday lives. Judges play the important role of upholding the rule of law and making sure that justice is fairly and equally enacted amongst all. With such an important responsibility placed upon judges, it becomes crucial that there be an effective and reliable system in place to ensure that the best-qualified candidates are entrusted with carrying out the duties of the bench. This is where merit selection comes in.

Rather than continue the politicization of judicial elections, merit selection allows for candidates to be considered for and appointed to judgeships based on their qualifications and proven track record. Through nominating commissions that thoroughly vet candidates and retention elections, merit selection provides the public with opportunities for engaged participation in choosing judges, rather than relying on thirty second attack ads.

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Jun 05 2014

Pennsylvania House of Representatives’ Judiciary Committee to Consider House Bill 1848

Published by under Merit Selection

The Bucks County Herald recently featured an op-ed column written by Charles Meredith encouraging members of the House Judiciary Committee to report out House Bill 1848 relating to merit selection of statewide judges. The Committee is scheduled to consider the bill early next week.

Now, all Pennsylvania judges are elected in expensive, partisan elections. House Bill 1848 would create a bi-partisan commission to screen and evaluate potential candidates for Pennsylvania’s Supreme, Superior, and Commonwealth Courts. Local judges would still be elected.

The merit selection process of House Bill 1848 involves four steps. A bi-partisan citizens nominating commission made up of lawyers and non-lawyers would evaluate judicial applicants and recommend the most qualified to the Governor. Next, the governor would nominate an individual from the short list created by the commission to be sent before the Senate for confirmation. Lastly, after the individual is confirmed as a judge, she or he can sit for a shortened term of four years before going before the voters in a nonpartisan retention election for a 10 year term, and every ten years following.

One glaring reason Pennsylvania should switch to merit selection is to maintain the role of a judge as an objective decision-maker. Judges are not, and should not be politicians. Judges are inherently different from the other elected officials. Using discretion to come to a well-reasoned objective decision is a judge’s main role, while other elected officials represent constituents and fight for their needs and desires. In doing so, these elected officials need to campaign and raise money to ensure they are elected and re-elected. Judges do not represent anyone. Instead, judges make objective decisions based on the rule of law. When the public sees judges campaigning and fundraising to win a seat on the bench, it takes away from their view of the judge as an objective decision-maker, and instead gives the impression that judges are the same as other politicians.

House Bill 1848 should be voted out of Committee because it represents a bi-partisan, commonsense effort to get the most qualified candidates to the bench by maintaining a judge’s primary role as decision-maker. It is time Pennsylvanians tell their representatives that judges are not politicians.

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May 29 2014

Political Justice

Across the country, politics is quickly rearing its head in the nation’s courtrooms. Lawmakers are infringing more and more upon the independence of the judiciary. Lawmakers in Oklahoma, Missouri and Kansas have introduced bills that limit the power of the judiciary following unpopular decisions.

This phenomenon is made worse by increases in partisan financial support for judicial elections, which are also threatening the independence of the judiciary. Current judicial elections make it nearly impossible for judicial candidates to run without substantial donations to fund their campaigns. This has allowed partisan and special interest groups to have more influence on judicial elections through their funding of candidates. In North Carolina alone, special interest groups spent more than $1.3 million on the Supreme Court race, with $900,000 contributed from the Republican State Leadership Committee being used in attack adds against incumbent Supreme Court Justice Robin Hudson.

A recent study by Center for American Progress reports that states have failed to update their judicial recusal rules to reflect potential conflict of interests resulting from campaign contributions.

Political pressure coupled with the increasing campaign contributions leaves our judiciaries in precarious situations. Editorials in The Washington Post and The New York Times highlight the growing concern over the loss of judicial independence. The judiciary has long been seen as the branch of government most isolated from the partisan bickering of politics. Judges are expected to rule in accordance with the law, safe from threats of retaliation from lawmakers. It is this separation of powers and the belief in the objectivity of the law, which has made our judicial system what is today. If events like those in Oklahoma, Missouri and Kansas continue, our proud history of an independent judiciary could be at risk.

One way to push back against the pressure of politics and money is to change the way we select our judges. Moving from Pennsylvania’s current system of expensive, partisan judicial elections to the merit selection of judges would curb the influence of money and politics from our courts. Merit selection takes into account the candidate’s ability to uphold the rule of law rather than the candidate’s war chest or political affiliation. In merit selection, a nomination commission of private citizens vets judicial candidates, with the most qualified candidates being recommended to the governor for approval and senate confirmation. Once confirmed, judges will sit for a shortened term before facing voters in a yes/no retention election to determine if they are fulfilling their responsibilities as judges. This helps limit the pressures of politicians and their checkbooks that our judges currently face.

The events in Oklahoma, Missouri and Kansas should serve as a warning that we need to take action to maintain the integrity of our judiciary. Here in Pennsylvania, PMC is currently pushing for legislation to implement judicial merit selection, protecting both the integrity of our judges and our justice system. We need an independent justice system that works for the people––not the politicians–– and merit selection is the best way to achieve that goal.

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May 07 2014

Politicians in Robes?

Great news for state-level Republican judicial candidates throughout the country: they could be seeing a lot more financial support from their party! The Republican State Leadership Committee (RSLC) announced its plans to launch the Judicial Fairness Initiative tasked with providing monetary support for judge candidates with conservative ideology.

Specifically, the Judicial Fairness Initiative plans to help mobilize voters, fund campaigns, and gather resources to help in judicial elections. While Matt Walter, president of RSLC, has not announced a set budget for the program, the group is estimated to spend more than $5 million on judicial campaigns this year alone.

Most recently, the RSLC had gained national attention with its involvement in the North Carolina Supreme Court race. The group contributed over $600,000 to the conservative Justice for All NC PAC. Justice for All NC then went on to release a series of ads against incumbent Justice Robin Hudson suggesting her of siding with ‘child predators’ after her dissenting opinion in a case over electronic monitoring of child molesters.

However, Republicans are not the only ones throwing money behind judicial candidates. Groups and individuals from across the political spectrum, including left-leaning Human Rights Watch, are providing financial support for their favored judicial candidates. Since very few states have laws requiring judges to recuse themselves in cases involving parties that contributed to their election, it presents a public perception of impartiality when judges preside over such cases.

Current judicial elections risk turning the judiciary into another partisan political battleground. When partisan political groups support judges, either financially or through endorsements, the perception of a fair and impartial judiciary is tainted. Judges then risk being seen as ruling in line with their political supporters rather than through the objective interpretation of the law. As Alicia Bannon, of the Brennan Center for Justice at NYU law school accurately states, the politicization of judicial elections risks turning judges into ‘politicians with robes.’ With a judiciary that depends heavily on public trust, judges cannot risk the perception of impropriety.

The most appropriate way to curb the influence of politics from the judiciary is through merit selection. Merit selection depoliticizes judges by removing the pressure on judges to act in accordance to a political ideology in return for campaign donations and support. Instead, merit selection relies on the nomination of qualified judge candidates by a bipartisan citizen committee for gubernatorial approval and Senate confirmation. This process ensures the selection of judges based on their earned credentials, not their political allegiance.

Pennsylvania can avoid the partisan influence of the RSLC and other groups by supporting efforts to move from contested elections of judges to the merit selection of judges. We all deserve a court system we have confidence in to act in accordance with the law, rather than with politics. Let the politicians keep their suits; we prefer our judges in robes.

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Apr 22 2014

Big Money Donors Shaking the Public’s Faith in an Independent Judiciary

Published by under Merit Selection

There is no doubt that when a big money donor exchanges their financial support for a judicial candidate’s political loyalty, “actual bias or the appearance of bias comes into question,” according to Judge David Stewart, retired executive director of the Arkansas Judicial Discipline  and Disability Commission.  Judge Stewart cites the example of the recently formed Americans for Judicial Excellence PAC, whose mission is to elect judges who represent the policy positions taken by the current conservative Republican Party majorities in the Arkansas legislature.  Only after judicial candidates have sworn fealty to the Republican Party’s core principles will they be invited to speak to the PAC and receive their endorsement and hefty monetary contributions.

 

A judge’s decision-making should be unbiased, based on the law and facts before them, not the political platforms of any party.  By requiring political allegiance in exchange for campaign contributions “not only does the judge become subject to actual impropriety, [but] the appearance of impropriety can be huge.”  Regardless of whether the judge is actually biased, how can the public have any “faith that the judge in question can be trusted to make a decision independent of the influence of money, or his quirky biases heretofore exhibited[?]”  Simply stated, it shakes the public’s faith in the independence of the judiciary.  For that reason alone, judges cannot and should not be subject to the political whims of big money donors.

 

The grave concerns raised by Judge Stewart are not isolated to Arkansas.  In a post Citizens United v. FEC and McCutcheon v. FEC world, where donors can spend enormous amounts of money to support the “right” judicial candidate, these same problems are lurking just around the corner in any state where judicial elections are held.  States like Pennsylvania, which have partisan judicial election systems, are at the greatest risk of a rising lack of public confidence in an independent judiciary due to campaign contributions.  These expensive and often messy partisan judicial elections shift the focus away from putting the most qualified candidate on the bench, but instead places it on who can be the most effective fundraiser and campaigner.

 

Merit selection is a commonsense approach to minimizing the negative effects of campaign contributions in judicial selection.  By selecting our judges through merit selection the need to stockpile donations and amass small fortunes from PACs becomes moot.  Instead of a heated campaign, the likes of which we generally expect to find between legislative or executive candidates, merit selection provides for an independent bipartisan citizens committee that evaluates and recommends the most qualified candidates to the governor for nomination.  Through this process, merit selection ensures that the seats on the bench are filled with candidates who are most qualified and not simply those with the biggest wallet.  This helps to restore the public’s confidence in an independent judiciary capable of rendering objective and unbiased decisions, free from the taint of campaign contributions.

 

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Apr 16 2014

Politics Over Principles in Race for Chief Justice

The race for North Carolina Supreme Court Chief Justice got a little more testy this weekend, as Republican candidates for the seat, Superior Court Judge Ola Mae Lewis, and Supreme Court Justice Mark Martin, traded barbs at a political event. Judge Lewis called into question the high court’s productivity, specifically highlighting that her opponent, Justice Martin had only written 5 opinions in the previous year. Conversely, Justice Martin touted his experience on the court, while taking a veiled swipe at Judge Lewis’s Republican bonafides, based on her past work for Democrats.

 

Although this back and forth may have been great political theater, it bears no relation and has nothing to do with who will make the best Chief Justice. The job of a judge is to uphold the law and protect the constitution – not to keep campaign promises or represent the interests of the voters who elected them. No matter who wins on election day, the citizens of North Carolina lose, because their new Chief Justice will be the best politician, not necessarily the best Chief Justice.

 

Here in Pennsylvania, we too use elections to select our judges. However, we shouldn’t have to make the same mistakes as North Carolina in order to recognize the need to change our system.

 

Instead of constantly putting judicial candidates through the rigor of meaningless campaigning, judges should be selected based on their qualifications alone. Moving to a merit selection system does just that. In addition to removing the money and negative campaigning components of electing judges, merit selection allows potential judges to be thoroughly vetted and chosen based on their qualifications, experience, and reputation for honesty, integrity and fairness. Most importantly, however, merit selection benefits Pennsylvania and the nation, by ensuring a more independent and impartial judiciary, free from the perception of bias that comes with expensive, partisan judicial elections.

 

It’s time to take campaigning out of judicial selection and choose our judges based on their merit.

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Apr 08 2014

What Does McCutcheon Mean For Judicial Races?

The U.S. Supreme Court recently decided McCutcheon v. Federal Election Commission (FEC), striking down aggregate limits on contributions to political candidates and party committees. Although the focus of this ruling was on federal election law, it has serious implications of state campaigns as well, particularly state judicial campaigns.

 

As a result of this ruling, individuals no longer have to pick and choose which campaigns to give to and whether to give to national parties at all, for fear of hitting their aggregate contribution limit. Now individual donors can give the maximum contribution to their national party and as many candidates as they want. With this increased money going to national parties, state party committees will most likely also see an increase in donations. It is this increase to state party coffers that will augment the already insidious effect of money in selecting judges.

 

In addition to the new money this ruling allows to flow into judicial campaigns, it also establishes a framework through which big spenders may challenge state campaign finance laws, and infuse even more money into judicial elections. The Supreme Court couched its decision on first amendment principles. The plaintiff successfully argued that the FEC’s aggregate limits on political contributions infringed on his right to free speech. So although this particular ruling only applies to federal elections, freedom of speech is a right that all citizens enjoy. Any states with similar limits in their campaign finance laws have officially been put on notice.

 

The amount of money that will flow into judicial races as a result of this ruling makes it more important than ever that Pennsylvania change its judicial selection model. We need to protect the integrity of the judiciary by eliminating the perception that justice is for sale. We can do this if we choose to select our judges based on merit, not money.

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Apr 08 2014

A Better Way to Pick Judges

Published by under Merit Selection

It’s great to be a legislator in Virginia. You have control over judicial appointments and if you ever get bored in the General Assembly, there’s likely a cushy judgeship waiting for you.

Virginia is one of only two states in which judicial appointments are decided entirely by the legislature. This method of judicial selection has resulted in power politics spilling over into the states’ courtrooms.

In 2008, Norfolk County was left with three vacant judgeships for months as a result of a dispute between Sens. Ken Stolle and Yvonne Miller. A similar incident occurred in 2012 when conservative lawmakers delayed the nomination of Tracy Thorne-Begland’s nomination to Richmond’s General District Court because he was openly gay.

Additionally, Virginia lawmakers have been making courtrooms their retirement destinations. Judges are generally reappointed until they retire, and then enjoy a generous salary and state benefits. Lawmakers often trade-in their positions in the legislature for a cushy spot on the bench, further adding to the perception of an unfair judiciary.

Despite its apparent flaws, Virginia lawmakers have been unwilling to enact any changes to the states judicial election process. A measure that would bar legislators from accepting judicial appointments within four years of leaving the General Assembly was rejected. However, the General Assembly did approve the creation of twenty-seven new judgeships.

Judicial selection practices, such as the one in Virginia, create a ‘patronage’ system in which legislators have considerable control over judicial appointments. Legislators are given indirect control of the courts by their ability to choose judges. Gaining a judicial appointment then relies upon the “connections” that a candidate has in the legislature rather than his or her qualifications.

A better way of appointing judges is through merit selection. Under merit selection, judges are evaluated based solely on their credentials by a bipartisan citizen’s nominating commission consisting of lawyers and nonlawyers, which represent the diversity of the state. Once candidates have been screened, a short list is then sent to the governor who must nominate one of the individuals on the list. The judicial nominee must be confirmed by the Senate and then will sit for a shortened term before facing the public in a yes/no retention election. In this manner, nominees are chosen not for their personal relationships, but rather for their qualifications, experience and ability to fairly uphold the law. Merit selection increases public confidence in the judiciary.

Pennsylvania should see Virginia as a cautionary tale about the pitfalls of mixing politics with the judiciary. The current expensive, partisan election of Pennsylvania judges creates a negative public perception of politics influencing a supposedly independent and impartial judiciary. In order for Pennsylvania to preserve the public confidence of its judiciary, it needs to implement merit selection.

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Mar 26 2014

Arkansas’s Judicial Business

Arkansas Circuit Judge Mike Maggio recently stepped out of the 2014 race for a seat on the Arkansas Court of Appeals, after it was revealed that he was behind an online pseudonym linked to racist, homophobic, and sexist comments. However, despite the moral turpitude Judge Maggio demonstrated in committing these acts, it is what he did while still in the judicial race that lands him prime real estate on our blog today.

 

When Judge Maggio was running for reelection, he received at least $10,000 in contributions that were linked to a corporate chain of nursing homes owned by Michael Morton. Just a few days later, Judge Maggio issued a ruling that lowered a damages award against Morton’s company from $5.2 million to $1 million. No wonder the public thinks justice is for sale.

 

Even if the legal reasoning was sound, there were no errors, and Judge Maggio’s actions were otherwise beyond reproach, his ruling came literally days after receiving the campaign contribution. Regardless of the reality, it certainly “appears” as if Morton was able to spend $10,000 in return for a ruling that saved him over $4 million. Often, this appearance of impropriety is nearly as damaging to the public’s confidence in the courts as actual impropriety. Judicial

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decision-making should not appear to be a business transaction.

 

Here in Pennsylvania, we too select our judges through expensive, partisan judicial elections. So the same scenario that just occurred in Arkansas could easily arise in Pennsylvania. But why should we let it come to that? If we got rid of judicial elections and selected our judges based on merit, we wouldn’t have to worry about the spectre of campaign contributions influencing judicial decisions. Elections including those for judicial office, are won and lost based solely on the financial wherewithal of the campaign. Merit selection takes money out of the equation and replaces it with an in-depth review of the qualifications and experience of the prospective judge.

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