judgesonmerit.org

The Pittsburgh Post-Gazette reports that controversy is brewing about Supreme Court Justice Max Baer’s comments about the Supreme Court’s forthcoming opinion in the redistricting case.  The Court issued an order in the case late Wednesday, but the opinion is not expected until some time next week.  Justice Baer made comments to the press about what he anticipated would be included in the opinion and also opined that due to timing constraints, it was likely that the 2001 districting maps would control the upcoming election. The State Republican Party has issued a statement criticizing Justice Baer for commenting on the case in advance of the opinion being issued and charging that he has violated the Code of Judicial Conduct, which prohibits judges from speaking out on pending cases.

This incident raises the issue of whether judges should communicate about their decisions outside of their written opinions.  We believe judges should let their opinions speak for them.  Judges and courts write opinions for the very purpose of explaining their decisions; this provides clarity and equal access to the decision and the reasoning underlying it.  The opinion should be the only way judges speak to the public about their decisions.

The Legal Intelligencer (subscription required) joined Pennsylvanians for Modern Courts by endorsing Merit Selection of Pennsylvania’s appellate judges.  The endorsement followed in the wake of the grand jury investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for allegedly using state employees to work on her political campaign for the Supreme Court.  The Intelligencer argued that:

Electing judges the same way we elect executive and legislative branch officials ignores the fundamental difference between judges and other officials. Judges are not supposed to represent constituencies, be responsive to popular will or partisan pressure, or make promises about what they will do in office. By contrast, legislators and executive officials are expected to do these things. The result of electing judges like we elect other officials is that the public believes — as Justice Sandra Day O’Connor has said — that judges are just politicians in robes.

The paper noted that the skills required to get elected to the Commonwealth’s appellate courts, fundraising, gaining the support of special interest groups, and the receiving the backing of a political party, are not “related to one’s qualifications to serve on the bench.” The editorial stated that Pennsylvanians deserve a fair and impartial judiciary where attorneys and their clients can be confident that the law, not their opposing party’s campaign contributions, will decide the case.

The answer is merit selection for the appellate courts. Merit selection will stop the flow of money from lawyers, law firms, businesses, unions and special interest groups to the judges who will later be deciding their cases. Merit selection will focus on the qualifications of those who wish to serve on the appellate courts and ensure that we have experienced, wise, ethical judges staffing our appellate bench. Merit selection will provide opportunities for talented lawyers from all over Pennsylvania — regardless of race, ethnicity, gender, political connections or access to big funders — to reach the bench. Merit selection will protect the dignity and integrity of our courts and restore public confidence in the judicial branch. Judicial elections not only cannot do this but undoubtedly undermine public trust and confidence in the judiciary.

Currently, Merit Selection legislation is pending before the legislature.  If passed, the voters of Pennsylvania will eventually be able to decide whether to amend the state constitution and have our appellate judges chosen based on qualifications, not money or politics.  Please contact your state representatives and senators and tell them now is the time to pass Merit Selection.

Both North Carolina and Alabama are looking to Merit Selection as a means of ensuring that judges are selected based on qualifications, not money or partisanship.

North Carolina pioneered publicly-funded judicial elections but fears for the future of that system after the US Supreme Court struck down Arizona’s similar “matching funds” public financing scheme.  The News and Observer argued that the state should avoid politically-charged judicial elections of other states where “judicial offices were seen to be for sale to the highest bidder, who was almost certain to be an interest group buying favorable judgments for its members.” A new plan, proposed by the state’s Bar Association, is based on confirmation and retention elections whereby the state’s voters would decide on judges nominated by the governor based on the advice of a diverse panel.

This proposal is not simple and it is not ideal, but there is no ideal way to choose our judges, and the Bar’s proposal is clearly better than any of the alternatives. . . [O]ur legislators need to give serious attention to the complex problem of judicial elections and to the Bar Association’s proposal for addressing it.

Alabama was the home of the nation’s most expensive state supreme court elections from 2000-09.  The Dothan Eagle reported that in this year’s election, voters will have almost no choice as all but one of the state’s incumbent Supreme Court justices and all of its appellate court judges are running unopposed.  As the Eagle explained:

Alabama’s judicial races have become extraordinarily contentious and, by extension, have grown to become the most expensive judicial races in the country.  If the depth of the acrimony in the campaigns doesn’t raise questions about how blind justice might be with any of the candidates on the bench, then the process itself should. A contest that requires judicial candidates to claim allegiance to a political party and all its philosophical baggage to seek an office that requires objectivity is flawed from the start.  Alabamians should insist that positions on the state courts be treated as judicial appointments instead of political offices.

We hope that the citizens of Alabama, North Carolina, and Pennsylvania will get the opportunity to choose a better way to select judges.

(Hat-tip to Gavel Grab)

The Chicago Journal outlined the process for judicial selection in Cook County, Illinois as follows: “The Central Committee of the Democratic Party of Cook County buys judges with the promise of votes, naming them to the party’s official slate in exchange for implicit support.” Being named to the slate is key in winning any judicial election as few voters have any information on a potential judge’s qualifications other than their party identification.  The Journal called for public funding of judicial elections to reduce the corruption inherent in a system where interested parties and attorneys are able to buy favorable court outcomes each election year.  The paper stated that this should be an intermediate step:

[W]e must demand that the state legislature and governor pass legislation at least to support public funding of judicial elections. Merit selection of judges would be better still, but public funding would lessen corruption immediately.

In an editorial today, the Philadelphia Inquirer urges the legislature to act on pending Merit Selection legislation.  Although the paper has supported Merit Selection for a long time, the impetus for the call today was the pending investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for improper use of her judicial staff for her judicial election campaigns.  The editorial first echoes PMC’s calls for Justice Orie Melvin to temporarily step down from her duties on the Court.   The editorial then explains:

The allegations alone ought to be enough to shake the public’s faith in the state’s system of electing its most powerful judges.

No matter what the outcome of the inquiry into the Orie sisters, the state judiciary would not have to weather such controversy if its top judges were chosen through a merit-based system of appointment, with voters’ concurrence through nonpartisan retention elections. . . .

With the Melvin controversy bringing renewed attention to Pennsylvania’s discredited system of electing judges, Harrisburg officials should seize the moment and move ahead on judicial reform.

We agree, and we hope the people of Pennsylvania will be given the chance to decide for themselves whether there is a better way to select appellate court judges.

The courts have become a football in Wisconsin’s ongoing political fights.  Wisconsin’s judges, like those in Pennsylvania, are elected, and judicial elections have become markedly more contentious since Wisconsin Gov. Scott Walker’s row with the state’s labor unions last year.  The Wisconsin State Journal has called for merit selection stating:

 Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing.  Lost in the process is the need for experience, independence and impartiality.

The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:

Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.

Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.

A poll conducted by Justice at Stake has shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today.  This highlights the dangers of judicial elections.  Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.

The Scranton Times-Tribune published a January 14th editorial calling on the Pennsylvania Legislature to enact merit selection of state appellate judges.  This move was prompted by the delivery of a target letter to Pennsylvania Supreme Court Justice Joan Orie Melvin.  The Times-Tribune echoed PMC’s call for Justice Melvin to step down pending the grand jury investigation or be removed by her colleagues.  The editorial stated that:

Even if the justice is not charged, however, the case to which the target letter is related already is a cry for sweeping reform of how appellate judges are selected in Pennsylvania.

The paper reported that Justice Melvin’s campaign for the high court was the most expensive for a single seat on the Court in state history with each candidate raising over $2 million, most of which came from parties with “frequent interests in the courts” such as unions, businesses, attorneys, and political parties.  The Times-Tribune cited the rising costs of judicial elections and the large spending by “ideological third parties” aimed at influencing state voters on issues other than judicial competence as the reasons why the Legislature must act now to mitigate the effects of politics and money on the state courts.

This issue has festered for years as the price of judicial elections has escalated, and ideological third parties have spent heavily to influence voters on political matters unrelated to judicial competence.  No one pretends that a merit selection would be perfect. Politics never can be eradicated from the process.  But politics can be mitigated, and qualifications emphasized, through a merit selection process that ends the need to raise funds, craft political alliances and rely on parties that frequently have business with the courts.  Since a lengthy process is required to effect the required constitutional change, the Legislature should move quickly so that the case involving the Ories is the last of its kind.

Pennsylvanians for Modern Courts have consistently advocated for merit selection of appellate judges and ending the Commonwealth’s money-fueled, partisan judicial elections.

There has been extensive news coverage of the revelation that Supreme Court Justice Joan Orie Melvin is the target of an on-going grand jury investigation about the use of government staff for election activities.  In the wake of those revelations, PMC called on the Justice to temporarily step aside from her judicial duties; PMC also urged the state Supreme Court to temporarily suspend Justice Orie Melvin if she failed to voluntarily step aside. PMC has been cited in numerous articles throughout the Commonwealth and by local radio stations.

Deputy Director Shira Goodman was quoted in The Legal Intelligencer regarding the target letter Justice Melvin received from the grand jury: “That was kind of the line for us. . . [The target letter] moved this from the realm of ‘this is kind of a sticky situation’ to ‘this is really much more serious and could undermine her ability to serve.’” Both the Pittsburgh Tribune-Review and Post-Gazette quoted PMC Executive Director Lynn Marks who stated that: “All citizens, including judges are presumed innocent until proven guilty, but judges and especially supreme court justices should not be permitted to judge others while under the cloud of such a serious investigation.”

Philadelphia Public Radio WHYY News Works also quoted Goodman in regards to Justice Melvin’s recusal from hearing cases involving the Allegheny County prosecutor who argued the previous criminal cases against her sisters: “We don’t think it’s enough. . . I think she would still be weighing in on very important questions that affect all Pennsylvanians from family matters to business questions to possibly the redistricting case and we don’t need a cloud. We don’t need questions about whether a judge. . . legitimately should be there or not.”

On Thursday, the Pittsburgh Post-Gazette echoed PMC’s call for Justice Melvin to take a leave of absence or face suspension:

Justice Melvin simply cannot go on as if this is business as usual. While her own presumption of innocence has not changed, her continuing presence on the high court does no service to the people of Pennsylvania or the venerable institution whose reputation she is supposed to uphold. Justice Melvin has already conceded half the point by recusing herself from cases involving the Allegheny County district attorney’s office. She must go further and take a leave of absence until this black cloud is cleared. If she won’t go voluntarily while the grand jury tries to connect the all-too-prominent dots of this case, Chief Justice Ronald D. Castille should use his power to convene a four-member majority of the court to suspend her.

Harrisburg Public Radio WITF also spoke to Goodman who outlined the problems with the judicial selection process in Pennsylvania: “We have a system that treats judges like politicians. They have to get party endorsements, they have to raise money, they have to curry favor with special interest groups to be able to run and succeed in a 67 county state.”  Goodman went on to explain that the grand jury investigation demonstrates why elections are not the right way to choose our appellate judges.

Pennsylvanians for Modern Courts today called for swift action following the Pittsburgh Tribune-Review‘s report that Supreme Court Justice Joan Orie Melvin is the target of a grand jury investigation focused on the improper use of judicial and legislative staff for her election campaigns. PMC has called for Justice Orie Melvin to temporarily step down or face suspension by the Supreme Court.  AS PMC Executive Director Lynn A. Marks explained, “All citizens, including judges are presumed innocent until proven guilty, but judges and especially Supreme Court justices should not be permitted to judge others while under the cloud of such a serious investigation.”

PMC also called on the Legislature to amend the state constitution to end election of appellate judges in Pennsylvania.  As PMC Deputy Director Shira J. Goodman explained:

 Judicial elections require candidates to campaign, politick, and fundraise, eliminating the distinction between them and politicians. Judicial elections are designed to pick the best campaigners and fundraisers. We need a system that is designed to get the most qualified, fair and impartial judges on the bench. . . . PMC calls on the legislature to. . .  give the people of Pennsylvania the opportunity to decide whether there is a better way to select appellate judges.

Tennessee is leading the fight against corruption in judicial elections.  The state’s Supreme Court has issued a new rule requiring judges to recuse themselves from cases involving campaign supporters.   Judges must now disqualify themselves from any proceeding in which their “impartiality might reasonably be questioned” including when they know or learn that a party or the party’s lawyer have contributed to that judge’s campaign.

This rule shows the growing national awareness of the dangers of money politics in judicial elections.  As the Brennan Center for Justice’s Maria da Silva stated:

The Tennessee Supreme Court should be applauded for taking this important step forward… [The] new, forward-looking rules will help ensure public faith in the court
system, and provide a model for the rest of the nation to follow.  As spending on high court elections continues to skyrocket, judges and litigants need a clear way to address recusal questions related to campaign contributions.

That the Tennessee Supreme Court even had to consider the new rule is another example of how judicial elections are increasingly at risk for corruption or the appearance of corruption which undermine public trust and the rule of law.  The new rule is a good attempt, but the best way to deal with the money problem is to get judges out of the fundraising business.