judgesonmerit.org

While money may not be the root of all evil, it is certainly the source of many problems when it comes to judicial elections.

When judges run for election, the cost of campaigning can be extremely high.  This means that the only individuals who stand a chance of winning a judicial election are those who are independently wealthy, or those who are successful in fundraising.   People who are independently wealthy are not necessarily the people most qualified to hold judgeships.  The fact that their wealth gives them an unfair advantage over more qualified but less affluent individuals distorts the democratic process and deprives voters of the most deserving candidate.

Compare, for example, the campaigns run by candidates for the Fayette County Court of Common Pleas bench.  In the campaign for primary election, Republican candidate Steven Walton has thus far reported spending only $7,603, has received no donations and has received only a $1,395 value in cash and in-kind contributions.  Meanwhile, Democrat Linda Cordaro has received roughly $132,000 in campaign contributions and has already reported spending $72,418.  She was even able to loan $86,700 to her campaign committee which has yet to be repaid.  The difference in funding is staggering.  While access to money does not reflect the candidates’ skills or lack thereof, it certainly influences their ability to campaign.  While both candidates will be spending their money largely on advertising and events, the abundance of resources available to Cordaro and not Walton will give her an unfair advantage, regardless of the merits of either candidate.

Additionally, financing a judicial campaign by accepting outside contributions carries with it negative consequences.  Much of the money donated to judicial campaigns comes from lawyers, law firms, and other organizations which frequent courtrooms and may likely come before the judges they help to elect.  This can create bias and undermine public confidence in the justice system.  This is certainly the case for Cordaro, who has accepted over $100,000 in campaign contributions from attorneys, business owners, contractors, and physicians.

It is easy to see how money and campaigning can have significant and negative consequences on the election process.

It would be premature to say that the sun is peeking through the clouds.

Pennsylvania has had to weather a great deal of shame and uncertainty since the Orie sisters, who should have been stewards and defenders of the law, instead fell under its scrutiny. Pennsylvanians’ faith in their judiciary is understandably at a low ebb. But now that sentencing is complete for former Justice Joan Orie Melvin and her sister Janine Orie, we can stop worrying about what happened, and turn our more sober thoughts to what we’re actually going to do to ensure that it doesn’t have to happen again.

Joan Orie Melvin – now no longer entitled to the ‘Justice’ designation – will spend the next three years under house arrest, and the following two on probation. She will have to pay a fine of $55,000, and, perhaps most humbling, will have to handwrite personal apologies to every judge in the Commonwealth and to every member of her campaign staff and the campaign staff of her sister, incarcerated former state Senator Jane Orie. Photographs of the fallen justice will serve as stationary for these apologies.

The staff of former Senator Orie is included, of course, because much of this matter arose out of the collaborative misuse of state personnel and services by the Orie sisters to further Orie Melvin’s campaigns for a seat on the high court. It’s been argued in the past that this is how the game is played, that in politics, it’s never what you can do, it’s who you know. But it should be obvious – and now more than ever, as a hobbled Supreme Court has struggled and continues to struggle to compensate for Orie Melvin’s now permanent absence – that we can’t afford politics when it comes to our judges. They should not have to play a game of power and influence to get elected, and who they know should count for absolutely nothing against their fitness to sit on the bench and weigh the law.

Pennsylvania should have judges that are qualified, unbiased, and meritorious, in all ways that the word has meaning. We should have judges who know the law and apply it fairly, not through lenses handed to them by special interests. We should have judges who rise based on their understanding of legal issues, not on how quickly they can stack cash beneath their feet. And if anything, we deserve to have judges who sign photographs because they are heroes – not because they must apologize for being criminals.

Let’s help give Pennsylvania an opportunity to choose a better path. Let’s put Merit Selection on the table.

It seems many state lawmakers agree that the current election system of selecting statewide judges in Pennsylvania needs to go.  Increasingly, lawmakers debate not whether it ought to be replaced, but rather what system would best replace it.

Recently, several lawmakers and advocates gathered for a special panel on merit selection featured on the Pennsylvania Cable Network.  The panel featured key players in the move away from statewide judicial elections.  Among the panelists were Senator Anthony Williams (D-Philadelphia), Senator John Eichelberger (R-Blair/Bedford), Kathleen Wilkinson, Chancellor of the Philadelphia Bar Association, and Lynn Marks, Executive Director of Pennsylvanians for Modern Courts

Although the panelists recognized a need to replace the current system, just what ought to replace it was debated.  Senator Anthony Williams, Lynn Marks, and Kathleen Wilkinson made the argument for merit selection of statewide judges in support of Senate Bill 298.  Senator Eichelberger proposed dividing up the state into geographically specific districts with candidates running from those districts.  The main thing both proposals share is that they would both replace the current system.  But merely replacing it is not enough.

When a system like judicial elections is being replaced, one must begin by asking: why is it being replaced?  The answers to that question can point us to what a new system ought to look like.  Primarily, using this method, the new system should NOT carry the same inherent flaws as the system it replaces.

There’s logic to this approach.  First, by questioning why a system is being replaced, we are forced to fully evaluate the merits and demerits of the current system.  This gives us insight into what a new system is meant to achieve.  Secondly, it gives clear indication on what we are trying to remove in the first place.  A replacement ought to ensure that flaws are corrected, not redistributed or maintained.

The current system of electing statewide judges needs to be replaced for several identifiable inherent flaws.  First, electing judges requires campaigning and all its defects.  Among those are fundraising among potential future court users and the potential to feel the need to mold one’s judicial views to the voters’ views.  Secondly, statewide judicial elections do not offer much for voters to vote on.  Although we are voting for a judicial candidate, we often don’t know exactly who that candidate really is and what qualifications that candidate brings to the table.

In a system that would create geographical districts we still see some of the same problems we sought to remove in the first place.  Although the local districts will be more familiar with their respective candidates, the candidates will nonetheless find themselves politicking, and the pernicious fundraising of campaigns would remain.  After all, although they are smaller districts, they would still be judicial elections.  The candidates would need to fundraise and may continue to feel the need to mold their views.

Merit selection removes these concerns while maintaining those bits we want to keep.  Clearly, statewide judicial hopefuls would no longer need to fundraise or campaign.  Yet the qualifications of judicial candidates would be more highly scrutinized and the citizens of Pennsylvania would still participate.

The nomination commission in a merit selection system would comb through each candidate’s qualifications.  They would not simply give the “go ahead” for candidates at the top of the ballot or candidates from a particular political persuasion.  Instead, they would turn to the merits of each candidate.  And, as Lynn Marks pointed out, the citizens “would still be involved.”

First, the voters would make the ultimate call on changing the system through a constitutional amendment implementing merit selection via referendum.  Secondly, the citizenry would be represented on the commission.   And lastly, and most important, the voters would have the option to vote whether or not to keep a particular judge through retention elections.  Senator Williams put it well when he said, “[t]he right to vote is a privilege that people in my community died for,” and ultimately the voters would have their say.

Despite any disagreement over new proposals, it is clear change is needed.  Lynn Marks described it well, saying, “I think the takeaway for today is that we all agree that the current system of electing statewide judges is broken.”  The best way to “fix” that broken system is to remove the flaws.  Merit selection would do just that and more.  It would remove the current flaws while advancing the goal of choosing the most fair, impartial, and qualified judges.  As Marks said, it’s “the better way.”

View PCN-TV’s special panel here.

Former Hawaiian Governor Linda Lingle declared her support for merit selection and former Pennsylvania Governors Edward G. Rendell, Thomas J. Ridge, Dick Thornburgh, and George Leader in a letter to the Wall Street Journal.

Governor Lingle writes in response to the Journal’s editorial “Judges, Politics, and George Soros,” which criticized merit selection and efforts in Pennsylvania to establish it, and the four former Pennsylvania Governors’ response, which we covered here.

Hawaii uses merit selection to appoint judges. In her letter, Governor Lingle registers her disagreement with the WSJ’s argument:

“The Journal is right in saying that ‘No method of judicial selection is perfect,’ but it errs by setting up a false choice between ‘the rough and tumble of electoral accountability’ or ‘leaving the choices to a lawyer’s guild that is accountable to no one but themselves’ as the only possible methods of choosing state judges.”

Governor Lingle, a Republican, also uses her own experience appointing judges through the merit selection system while in office to reject the WSJ’s argument that merit selection sends state courts to the political left.

Thank you, Governor Lingle, for offering your opinion and publicly supporting our own former Governors at this critical point in Pennsylvania’s move towards merit selection. Your voice helps reinforce that merit selection is not about partisan politics – it’s about getting the best judges on the bench. Hopefully Pennsylvania will soon be able to join Hawaii and the majority of the United States in making that vision real.

The Philadelphia Inquirer has made some distressing observations about the state of judicial elections in Pennsylvania. Take, for instance, the tale of Sayde Ladov. Two years ago, Ladov, a former chancellor of the Philadelphia Bar Association, ran for Common Pleas judge in Philadelphia. She raised a quarter of a million dollars, but it couldn’t buy her a decent ballot position. She lost. And she says that she’ll never run again. And so, another one bites the dust.

Just weeks away from the judicial primary, resigned to their fate, qualified candidates are winding down their campaigns because they were saddled with a lousy ballot position. The Philadelphia Court of Common Pleas loses what could have been a remarkable judge, and the selection of “officials who decide matters of life and death, health and prosperity” becomes a game of chance. “You could be Louis Brandeis or Thurgood Marshall running for Common Pleas Court in Philadelphia and, without a good ballot position, you’re not going to win.”

“The four things it takes to win have absolutely nothing to do with being a good judge,” said Common Pleas Court Senior Judge Benjamin Lerner. “Money. Political connections and support. Race, gender, and ethnic identity that voters will use to choose candidates because they don’t know anything else. And chance.” PMC’s Executive Director, Lynn Marks, pointed out the lack of information available on judicial candidates. “They’re on the low part of the totem pole yet are arguably the most important elected officials in terms of directly impacting people’s lives. Yet people know the least about them.”

It’s pretty disheartening to think about the effect that the selection process is having on the judiciary. Qualified, invested candidates are discouraged from running before a single ballot is ever cast. Candidates are disheartened by their experience, and many candidates, like Ladov, never run again. Plus, it costs about $250,000 to win a seat on the bench. So if the luck of the draw didn’t get you, the massive fundraising push just might.

What we’re left with is a pool of candidates that were lucky enough to get a choice ballot position and rich enough to put on a winning campaign. If they happen to also be qualified, that’s an added bonus. It all seems to miss the mark. We shouldn’t be boxing out the best judicial candidates and leaving the administration of justice to what amounts to a roll of the dice. Ladov acknowledges, “Right now, these are the rules of the game. Either you’re going to play by the rules, or you’re not going to play.” So let’s change the rules.

Four former governors of Pennsylvania have written a letter to the Wall Street Journal expressing their support for merit selection in the state. The letter

is a response to an April 1 editorial criticizing merit selection. Governors Ed Rendell, Tom Ridge, Dick Thornburgh, and George Leader issued a bipartisan statement defending merit selection and urging the Pennsylvania legislature to move forward with the initiative.

According to the governors, “Merit selection is a hybrid appointive-elective system that stops the toxic flow of money from litigants and law firms that often appear in state court.” They also correct the misconception that merit selection would remove the public from the judicial selection process. Voters have opportunities to provide their input throughout the selection process. But more, the public has “the ultimate vote as to whether a judge stays on the bench.”

The people have another chance to get involved – they get the final word on whether or not to enact merit selection. The people want to have their say, and the governors want to give it to them. “Ninety-three percent of Pennsylvanians want to vote on whether to change the system of judicial elections that depends on campaign contributions from potential litigants and lucky ballot position. As former elected governors, we believe that the voters should have the opportunity to make that decision.”

The Texas Tribune reported on a study by San Diego State University political science professor Madhavi McCall that analyzed the relationship between judicial decisions and campaign contributions in 530 Texas Supreme Court over period lasting more than three years. “In every instance,” professor McCall said, “the probability of a party garnering votes increases if the party contributed to a given justice’s campaign.”

But most judges and justices are adamant that campaign contributions never affect their rulings. Some even suggest that donations from law firms and other attorneys, rather than inspire concerns about impartiality, should instead be perceived as indicators of quality.

“People who are not qualified cannot raise the money it takes,” according to Texas Justice Debra Lehrman.

It’s hard not to view this as something of a self-serving philosophy.

There’s perhaps even a small thread of cynicism among the justices about the capability of voters to even know what they’re voting for. “Voters insist they want the right to elect their judges,” Supreme Court Justice Don Willett says in the Tribune article. “Ask them to name one, and they’ll likely come up blank. But they want a voice, even as they say that judicial fundraising raises appearance concerns.”

An article from the Wisconsin Isthmus

reports on the money pouring into the Supreme Court campaigns of Ed Fallone and incumbent Pat Roggensack. Filings with the Government Accountability Board show that the candidates for Supreme Court took in a combined $530,000 between February 5 and March 18, and together have raised nearly nearly $900,000.

This figure does not include the money spent on “issue advertisements,” which do not count as direct contributions. The article reports that a single organization, the Wisconsin Club for Growth, placed $300,000 worth of ads during the primary election, and has since spent an additional $146,000 in Milwaukee alone on the general election. Roggenback has also enjoyed the support of the Wisconsin Manufacturers & Commerce, and Fallone has enjoyed significant donations from unions.

And though the election is officially nonpartisan, the state Republican party has given multiple donations to Roggensack, and local Democratic groups have donated to Fallone’s campaign.

Obviously, any justice or judge is going to take his or her ideology to the bench, at least to some degree. But with high-cost judicial elections, we are getting judges who can only reach the bench based on advertised ideologies and political alliances, not their actual qualifications or experience.

The amounts spent on judicial elections keep increasing, and a judicial candidate needs only to be a good political investment, not necessarily good judge, in order to even have a shot. Unless we do something to reverse this trend, the noise of expensive campaigning will drown out everything else.

A recent poll found a majority of Kansan voters believe

their current merit selection system is in their “best interests.”  According to Bert Brandenburg, Executive Director of Justice at Stake, merit selection is “generally popular and successful in the 23 states that rely on it …”  This includes Kansas.

Nevertheless, despite the support for and effectiveness of merit selection, lawmakers in Kansas have pushed through a bill that will allow for gubernatorial appointment of Kansan appellate judges.  There are various claims to support this move.  One claim, according to Governor Brownback, is the current system “fails the democracy test.”

The truth is that merit selection does not fail the “democracy test,” but rather—and much to the disappointment of political insiders—it fails the politics test.  Merit selection bypasses politics in favor of choosing the most qualified candidates for the bench.  While no system completely removes politics, merit selection gets judges out of the fundraising and campaigning business.  Once the candidate has been chosen, the people are then free to decide whether or not the candidate should be retained.  That’s democracy.

Merit selection is a system designed to keep politics out of judicial selection, not to keep the people out.   It ensures that Americans can come before the most qualified judges and receive fair and impartial decisions.  As the people of Kansas know, it serves the best interests of the citizenry.  It is campaign corruption and political favoritism that fails the test.

It’s disappointing that Kansas has shifted away from merit selection despite its wide support and proven effectiveness.  Kansans believe merit selection has worked for them.   Yet according to Brandenburg lawmakers in Kansas have worked to make it “far easier for a governor to use political litmus tests and favoritism in naming judges.”  Taking that step back was just one step back from fairness and impartiality.

Luck is defined generally as good fortune, yet one synonym of luck is ‘fluke,’ and that’s just what Philadelphia’s judicial election ballot selection procedure for the Traffic Court tends to feel like.  But when it comes to selecting judges, Pennsylvanians deserve more than a “fluke;” they deserve the most qualified

candidates.

Yet the procedure to determine ballot positions for candidates for Traffic Court does nothing to help ensure that all Pennsylvanians can come to our courts, “minor” or otherwise, with confidence that they will be heard by qualified, fair and impartial judges.

The selection procedure, as reported by the Daily News, consists of a deteriorated Horn and Hardart coffee can with numbered bingo balls placed inside.  The candidates reach into the can to select a number amid a cheering crowd.  The bingo ball they snatch determines where their name will appear in a long string of competitor candidates for the court.

The fluke in the ballot positions would be harmless if they were only that—a fluke in ballot position.  According to the Daily News, however, “drawing one of the top three ballot positions can make all the difference in running for Traffic Court’s three vacant seats.”

Because judicial candidates are less well known, and judicial candidates appear at the bottom of the ballot, position becomes even more important.  According to Wilkes University political science professor Thomas Baldino, “Research shows that the higher up a candidate is on a ballot is preferred to being further down.”  Ballot position, Professor Baldino added, is “more important with a multi-candidate field” due to “voter fatigue.”  Certainly, in this year’s Traffic Court race, 41 candidates constitute a “multi-candidate field.”

Despite the importance of something as random as ballot position, Philadelphia presses on year after year with a procedure as deteriorated as the Horn and Hardart coffee can.  Last year’s drawing, conducted in the same manner as this year’s, reportedly had “the feel of a circus joined to a lottery.”  The “ritual assumed the feel of a boxing match, with spectators oohing and aahing, and some would-be winners shouting gleefully,” reported the Inquirer.

Last year’s lucky number one winner danced from the room singing “Hallelujah, thank you Jesus.  Do the right thing and vote for [me] in the spring.”  This year’s Traffic Court drawing wasn’t even attended by last year’s lucky singing-candidate, although by great fortune he received first position on the ballot after a Commission staffer in his stead plucked the favored bingo ball from the battered coffee can.  It was a lucky draw, no doubt, and the crowd reacted with a combination of amazement and angst, according to the Daily News.

Of course, ballot position isn’t everything, but it’s a lot.  Following last year’s drawing, one candidate exclaimed, “I have a real chance to win, especially after God blessed me with that ballot position today.”

Judges should be selected based on their experience, qualifications and reputation in the community for being fair and impartial rather than a lucky ballot position, fundraising acumen or campaign prowess.  Pennsylvanians deserve a better way to choose their judges.  We shouldn’t leave justice up to chance.

In order to protect the integrity of our courts, former Pennsylvania Governor Dick Thornburgh believes Pennsylvanians should implement merit selection.  He is not alone.  In fact, even among former Pennsylvania governors he is not alone.

Along with Gov. Thornburgh, Gov. Tom Ridge, Gov. Ed Rendell, and Gov. George Leader have sent a joint letter to members of the House urging them to give Pennsylvanians the opportunity to vote on whether judicial elections should be scrapped in favor of merit selection.

During a recent phone conference with Governors Thornburgh, Ridge, and Rendell, it quickly became clear to me that merit selection is important to them.  As one reporter pointed out during the conference, it is unprecedented to have this many governors come together on an issue in this way.

But what may be more unprecedented is the bipartisan effort among not only the governors, but among representatives, senators, and ordinary citizens to give Pennsylvanians the option to finally decide for themselves how they would like to choose their judges.

As more information is made available it is becoming clear to everyone, the media, the people of Pennsylvania, and even those that are close to the system such as former governors, that merit selection is what is best for Pennsylvania.

The current process “casts a very dark shadow over the integrity and independence of our judicial system,” according to Gov. Ridge. He further argued that it is absolutely imperative to get judicial candidates out of fundraising and campaigning out of the judicial process.  His sentiment was echoed by Gov. Rendell, who argued, “The

influence of money in judicial elections is pernicious, and it creates a feeling among ordinary folks that justice is for sale, whether that is true or not.”

Pennsylvania needs fair and impartial courts.  In order to have that, the people of Pennsylvania must first be given the option to decide whether or not merit selection is right for them.