Dec 04 2014

As Judicial Campaign Expenditures Increase, Faith in the System Decreases

Published by under Merit Selection

As judicial campaign contributions and expenditures continue to rise in the wake of the Citizens United decision, more commentators have begun to question just how “fair,” “impartial,” and “independent” our judiciary is. This past election, campaign spending for judicial elections in several states reached record highs. In states such as North Carolina, spending by outside special interest groups was more than double its previous record ($5.2 million spent). The overwhelming majority of outside spending was independent expenditures that are not subject to disclosure requirements, and most contributions came from out of state conservative groups.

No wonder people think justice is for sale. Several studies have shown a troubling connection between ad spending and “tough-on-crime jurisprudence.” A study conducted by the American Constitution Society found that increased TV ads aired during state Supreme Court elections correlated with justices being less likely to decide in favor of criminal defendants. Additionally, a study conducted in 2004 by Gregory Huber and Sanford Gordon of more than 20,000 criminal cases over a decade in Pennsylvania, found that judges implemented higher sentences against defendants during election years. The study alarmingly discovered that approximately 2,000 additional years of incarceration could indirectly be ascribed to judicial elections.

In Pennsylvania, voters will elect three Supreme Court justices in 2015. Since it seems unlikely that there will be restrictions on campaign spending any time soon, perhaps the best way to solve this issue is to steer away from judicial elections and toward merit selection. Pennsylvania is one of only six states that elect all our judges in partisan elections. Judges should be making decisions based on an impartial assessment of the law and the facts in front of them, not based on how their ruling may be portrayed during the next election cycle. It’s time for a change.

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Dec 02 2014

2014 Judicial Election Recap

Published by under Judicial Elections

On Tuesday, November 4th, Supreme Court justices in 22 states were on the ballot, with retention elections in 14 states.  In many states, the judicial elections were expensive, negative, and bitterly partisan.

Perhaps the clearest trend to emerge from the 2014 elections is the increasing role of money in judicial elections.  For television ads alone, $13.8 million was spent this year on state Supreme Court races.  59% of this money came from outside special interest groups or a political party.

In Illinois, a retention election turned into a “brawl between special interests and partisans.

In Kansas, TV ads attacked two incumbent Supreme Court justices as being “soft on crime” and “liberal” for their votes in a case vacating a death penalty conviction, even though the court’s ruling was a bipartisan, 6-1 vote.

North Carolina just had their first judicial election without a public financing system.  Not surprisingly, at $5.2 million spent, it was by far the most expensive Supreme Court election in the state’s history.

In Montana, likewise, record TV ad spending led to a race fraught by negativity.

In one Montana Supreme Court race, 87% of TV ad spending came from special interest groups outside of the state.

Retention elections should be about the qualifications of the judge to continue to serve on the bench. They should not serve as a proxy for a referendum on an unpopular ruling.  Nor should they be a way for outside interests to drown out the interests of voters and their crucial decisions on whether a judge is qualified enough to rule fairly and serve ethically.

For candidates and incumbent judges facing retention, unbridled spending on judicial races creates pressures to avoid political attack or win favor of those with the money and connections necessary to get them elected.  These are perverse incentives.  A November 2nd New York Times editorial highlighted the issue, calling money and judges a “bad mix.”   A 2013 American Constitution Society study found “a significant relationship between business groups contributions to state Supreme Court justices and the voting of these justices in cases involving business matters.”

Judges should be insulated from the political headaches of the other branches of government.  Most judges don’t want to campaign — they would much rather focus on the cases before them.  But with increasing spending by outside groups seeking to change the political makeup of courts around the country, judges are forced into the fundraising, speech-giving, coalition-building roles usually ascribed to legislators and executives.

The largest takeaway from the 2014 elections may be this: voters don’t want to treat judges like politicians.  In each and every one of the races this month in which outside interests attempted to unseat incumbent judges by pressuring them politically, the incumbent kept his or her seat.

The message of 2014 is that money and politics don’t belong in the judicial arena.  In the future, let’s make sure that judges in Pennsylvania and elsewhere get their jobs based on qualifications, not politics.  And in retention elections, we as voters can and should continue to see past the transparent efforts of outside groups to oust qualified judges as retribution for unpopular opinions.  After all, the best judges are those willing to forgo any considerations of how popular a legal decision may be.  Rather, they focus on what is right by the Constitution and the laws of the land.  That is the standard that citizens should keep in mind for our judiciary.

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Nov 06 2014

Misconduct in PA’s highest court leads to calls for reform

Published by under Merit Selection

(2)  An independent, fair, honorable and impartial judiciary is indispensable to our system of justice. The Pennsylvania legal system is founded upon the principle that an independent, fair, impartial, and competent judiciary, composed of persons of integrity, will interpret and apply the law that governs our society. The judiciary consequently plays a fundamental role in ensuring the principles of justice and the rule of law. The rules contained in this Code necessarily require judges, individually and collectively, to treat and honor the judicial office as a public trust, striving to preserve and enhance legitimacy and confidence in the legal system.

   (3)  Judges should uphold the dignity of judicial office at all times, avoiding both impropriety and the appearance of impropriety in their professional and personal lives. They should at all times conduct themselves in a manner that garners the highest level of public confidence in their independence, fairness, impartiality, integrity, and competence.

–       Preamble, Pennyslvania Code of Judicial Conduct

 

The suspension and subsequent retirement of Pennsylvania Supreme Court Justice Seamus McCaffery has led to renewed calls for reform of the partisan election system in Pennsylvania.  The Allentown Morning Call called Justice McCaffery the “poster boy” of merit selection.  Justice McCaffery himself has said that he would not be on the Pennsylvania Supreme Court in a merit selection system.

Between the “kids for cash” scandal, Justice Orie Melvin’s conviction for campaign corruption, federal indictments of Philadelphia Traffic Court judges, and the recent pornographic e-mail scandal that embroiled the Supreme Court, Pennsylvania has seen more than its fair share of judicial scandals in recent years.

Currently, Pennsylvania appellate judges reach the bench through expensive, low-information, partisan elections, which means candidates need political skills, party support and fundraising connections to get on the bench.  Money is often “dark,” coming from secret sources or from-out-of-state entities that funnel it to help certain candidates. Merit selection would allow judges from other parts of the state to be selected based on their qualifications, not because of fundraising ability, name recognition, political party, ballot position, or any other arbitrary reason.

The judicial branch is unique.  Politics should not be involved in legal rulings, and citizens deserve a system where we can rely on judges to be qualified, impartial, and of the highest ethical caliber.  The judiciary should be independent from outside influence and politics, and accountable only to the rule of law.  And justices should not be worried about political blowback when making important legal decisions that affect the rights and liberties of individuals.

The Pennsylvanians for Modern Courts (PMC) plan, recently advocated for in a Philadelphia Inquirer editorial, recommends implementing a system of judicial selection similar to that of some other states.  This would create a bipartisan nominating commission that recommends highly qualified candidates to the governor, who selects a candidate that the state Senate must then confirm.  The judge would then serve a 4-year term before facing the voters in a retention election for a new 10-year term, with retention elections repeated every 10 years thereafter.

It won’t be easy – such a change would require the legislature to pass a merit selection bill in two consecutive sessions, followed by a statewide referendum to amend the Pennsylvania constitution.  But it is becoming increasingly clear that it is time for Pennsylvanians to act.  While no method of judicial selection is perfect, that should not prevent us from seeking to improve the system currently in place.

Next year, Pennsylvanians across the state will vote for three of the seven Supreme Court justices. This overhaul of the Court will have long-term implications for Pennsylvanians.  With judicial elections becoming more and more expensive and partisan by the year, it will likely be a dogfight.

Merit selection will help ensure that all statewide judges have the necessary legal credentials and judicial temperament to match the dignity of the position.  Judges must conform to the highest standards in both their personal and professional lives. Pennsylvanians should be able to have faith in our justice system.  Judicial misbehavior, or even the perception of misbehavior, harms the reputation of the entire court system in the eyes of the public.  While there are many excellent judges in Pennsylvania, we should do all we can to ensure that each and every appellate judge is qualified for the bench.

 

Recent Editorials Calling for Merit Selection

11/1/2014 – Scranton Times-Tribune – Use existing system to drive reform

10/29/2014 – Harrisburg Patriot News – Pennsylvania gets a peek at a better way of picking judges

10/28/2014 – Philadelphia Daily News – Justice Done

10/28/2014 – Pittsburgh Post-Gazette – Where’s the merit? Another bad justice leaves the state’s top court

10/26/2014 – Philadelphia Inquirer – How to put order back in Pa. courts

10/23/2014 – The Sentinel (Carlisle, Pa.) – Select appellate judges by merit

10/21/2014 – Pottstown Mercury – Shameful actions of justices stain state Supreme Court

10/20/2014 – Philadelphia Daily News – Porn excuse for a court

 
Articles on the Calls for Reform in Pennsylvania

10/27/2014 – Pittsburgh Post-Gazette – Should Pennsylvania judges be elected? Recent scandals force the question

10/25/2014 – Pittsburgh Tribune-Review – Pa. Supreme Court in ‘sad state’ as scandals tarnish reputation

10/25/2014 – WHYY Newsworks – Pa. Supreme Court imbroglio renews calls for changing judical selection process

10/22/2014 – KYW Newsradio 1060 Philadelphia – PA Supreme Court Scandal Leads To Calls For Statewide Court Reform

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Sep 18 2014

$3.1 Million Spent On Television Ads For Judicial Campaigns

Published by under Merit Selection

Justice at Stake reported that an overwhelming $3.1 million has been spent this year alone on TV ads for state supreme court primaries and off-cycle elections.

More money has been flowing into state elections than ever before. For instance, North Carolina judicial candidates just spent a state record amount of $1.3 million in their primary election. Tennessee, Idaho, and Arkansas spent MORE money in judicial election years than in their previous judicial election cycles. The amount of money flowing through these elections should not go unquestioned, especially when groups like the Republican State Leadership Committee specifically target upcoming elections, such as in Ohio, Michigan, Montana, North Carolina, New Mexico and Texas. Some of these states have attempted to protect themselves from future dark money influence Montana and New Mexico, while others are far more susceptible to the influence of dark money (North Carolina and Texas).

The more alarming fact is that 53% of the spending on television ads in Tennessee this year was done by outside interest groups. In Arkansas, a grand 88% of the spending was contributed by outside groups. In 2011-2012, special interest groups were responsible for only 38% of the total TV spending. In this election cycle, special interest groups have been responsible for 60% of the total spending on television ads. With dark money interest groups on the prowl, how can we expect the judicial candidates to focus on fairness in November when 8 states will have contested elections for their supreme courts and 14 others will have retention elections? When will the courts refocus on the integrity and fairness of our judicial systems?

It would be a mistake for Pennsylvania to do nothing to stop the inevitable flow of outside money into our judicial elections. We must safeguard our courts from the corrosive effect expensive judicial elections have on the public confidence in the courts. Through merit selection, Pennsylvania would be free of influence from outsider money; and instead maintain highly qualified judges dedicated to fairness within our courts. It is important that Pennsylvanians take action for change in order to keep our justice system fair.

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Sep 10 2014

Names Should Not Be the Name of the Game

An editorial by Brent Larkin at the Northeast Ohio Media Group laments the state of the judicial election process in Ohio.  He writes about the bottom-of-the-ballot matchup between two Cuyahoga County Common Pleas candidates with near-“royal” names.

McMonagle vs. Gallagher.  In the red corner, the son of the incumbent, the beneficiary of a 15-1 McMonagle family record in Ohio judicial elections dating back to 1966.  In the blue corner, the niece of an appellate judge in the Ohio’s 8th district, based in Cleveland.  In fact,  the Gallagher name is so well known and liked in that district that fully 25% of the judges on the bench there share the last name.  That’s three out of twelve , including two Eileen Gallaghers.  Bushes, Kennedys – step aside.

Larkin’s point is not that this is the premier race of the 2014 political season.  On the contrary, voters in Cuyahoga County have 21 other races to decide before they even reach this one on their ballots.  There are 59 elected judgeships in the county – a lot for busy voters to keep track of.  But when they get to the polls, Larkin fears, “few things matter less to the electorate than qualification,” and “nothing matters more to them than a candidate’s last name.”

This isn’t a unique problem to Ohio, of course.  Just look at Pennsylvania. Our judges are often elected for arbitrary reasons  – whether it is because of their last names, party affiliations, connections to the right people, or the resources in their campaign coffers.  This leads to judges that are often under-qualified or unqualified because of a system that thrusts them into roles of immense power over the day-to-day lives of citizens.

Of course, there are plenty of judges who are worthy of the bench.  But all too often voters lack the information to ask the right questions.  How much experience does a judicial candidate have? What are their stances on important issues?  Do they display the work ethic, efficiency, temperament, and respect for the law that a successful and fair judge needs?

The system of electing judges in Pennsylvania perpetuates low-information, “sound-bite” voting and rewards many of the candidates that would be the most burdened if information about them were to come to light, whether to voters or to an independent commission.  Sunlight, as the saying goes, is the best of disinfectants.

The best way to elect an independent and impartial judiciary in Pennsylvania is to reward candidates based on merit, not on a wildcard such as last name. Public trust in the judiciary is crucial, and low-turnout elections don’t usually produce judges worthy of the confidence of the citizenry.

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Aug 21 2014

19 Candidates For the Picking

Published by under Merit Selection

Could a reasonable person expect the average voter to perform in-depth and efficient background checks and research on 19 candidates for the election of one seat on the bench? North Carolina seems to place that level of optimistic confidence in their voters.

After Judge John Martin retired on August 1, 2014 from North Carolina’sSuperior Court,  19 judicial candidates stepped up in hopes to fill his vacant seat. Because Judge Martin retired after the primary elections, but before the general election, all candidates for his seat will be listed on the November ballot.  The person who is elected will have an 8 year term with the ability to alter or shape the climate and conditions of the North Carolinian courtroom.

Choosing judges is an important decision. Judges affect all aspects of our lives, from where we live to where we work to who we marry.  It’s important that the most qualified, fair and impartial judges sit on the bench. But by electing judges, however, we are all too familiar with the fact that the average voter will not research all the candidates in the judicial election in hopes to find the best fit for the job. And who would? Instead, judges are elected based on at things like name recognition, the ethnic or geographic background of a candidate, or even where a candidate is listed on the ballot. This type of chance should be concerning, as it does not ensure that a well-qualified and impartial person sits on the bench.

Although this is an extreme example, the North Carolina race for chief judge of the Superior Court clearly demonstrates the problems with judicial elections. Pennsylvania should NOT follow suit; as we should all know by now that repeating an action over again and again expecting a different result is the wrong path. But there are other options. Merit selection is the right solution to break this cycle. Merit selection ensures that only the most qualified, fair and impartial judges reach the bench.

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Aug 06 2014

Need for Less Chance and More Focus on Qualifications in Judicial Selection

Published by under Merit Selection

On July 10, 2014, in the wake of a rare tied election, under the New Mexican constitution, the flip of a fifty cent piece decided that Kenneth Howard Jr. was declared the new magistrate judge of McKinley County.

While not as arbitrary as a coin flip, judges who are elected are often chosen based on random factors. Name recognition, apparent gender or ethnic background, where the judicial candidate is from, or even where the candidate is listed on the ballot are all major factors in deciding who sits on the bench. Do we want to leave judicial selection up to chance? Isn’t it better to use a system that takes the time and effort to seek and appoint the most qualified fair and impartial judges? These are not trick questions, yet Harrisburg has not delivered an answer.

Merit selection is a better way to choose judges because the process focuses on qualifications, not random and irrelevant factors. The merit based system operates under informed decisions, including testimony by sworn officials and various in depth screenings to determine the most qualified candidates. There is no haphazard game of chance for the public in the merit system. Plus, merit selection affords the public opportunities for more meaningful input through feedback during the nominating process and retention elections.

Pennsylvania’s justice system would benefit from a change to merit selection. The merit system is the best way to ensure a qualified, fair, and impartial judicial system.

Let’s not let the integrity of Pennsylvania’s justice system continue to rely on the whims of chance. It is time for merit selection to become a reality in Pennsylvania.

 

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Aug 05 2014

Expensive Judicial Elections are an Assault on Our Courts

Published by under Judicial Elections

Tennessee courts are specifically tasked with deciding “on the constitutionality of legislation passed by the General Assembly” and to “consider the legality of administrative policies and regulations.”  Why then, are so many politically motivated groups spending so much campaign cash prior to the upcoming Tennessee Supreme Court retention elections?

The answer seems to be related to the Supreme Court justices appointing an attorney general who did not join other attorney generals in a lawsuit opposing the Affordable Care Act. For the record, once the Tennessee Supreme Court appoints an Attorney General, the Attorney General is completely independent and does not answer to the Court.

Regardless of the underlying motivations, the amount of money spent in an attempt to influence the retention elections is emblematic of recent trends of increasingly political and expensive judicial elections. According to Justice at Stake, the Tennessee Supreme Court retention election has set a record by exceeding $500,000 in television advertisement spending.  Tennessee Forum, a group that opposes retaining the three justices up for election, has contributed $245,000.  Likewise, Keep Tennessee Courts Fair, a group that supports retaining the three justices, has given a considerable contribution amounting to $210,000.

Industrialists Charles and David Koch have even thrown their hats in the ring by having their organization, Americans for Prosperity, contribute significant amounts to the campaign to unseat the three justices.

Judges should be chosen (and retained) based on their qualifications including legal experience, judicial temperament, and quality of their decisions. Choosing judges (or choosing whether to retain judges) through a political process for a nonpartisan job is nonsensical.

Pennsylvania needs to start learning from the examples of states like Tennessee. We need to protect our courts from special interests and politicians that see them as just another tool in the political arsenal. It’s time for Harrisburg to stand up to entrenched special interests and have a serious discussion about commonsense reforms like merit selection.

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Jul 24 2014

Justice Sandra Day O’Connor Creates Judicial Selection Plan

Published by under Merit Selection

Fixing a problem usually consists of seeking out those who are most knowledgeable and familiar with the situation.  Such is the case when former Supreme Court Justice Sandra Day O’Connor and the Institute for the Advancement of the American Legal System collaborated to develop a merit selection plan they hope states will adopt.

This Plan gives a blueprint for states to select judges in the most nonpartisan and fair way and to ensure that judges are the most qualified for the position.  It consists of four parts: a nominating commission, gubernatorial appointment, judicial performance review, and a retention election.

The judicial nominating commission component is intended to be a diverse nonpartisan committee, appointed from a variety of sources, that screens and identifies candidates to forward on to the governor.  This process makes sense because the nominating commission will be able to thoroughly evaluate candidates and select the most qualified.  In contrast, voters in judicial elections often choose who to vote for based on irrelevant factors, such as name recognition, position on the ballot, and perceived gender or race. The nominating commission can focus solely on qualifications such as legal experience and knowledge, judicial temperament, and community involvement.

The nominating commission then sends a short list of candidates to the governor for appointment. The Plan suggests limiting both the number of candidates on the list and the time for the governor to act. While the appointment is inevitably political, gubernatorial appointment is one place where the public can express their opinions about the candidates. Further, since all the candidates on the short list are extremely qualified, it makes little difference which candidate is selected.

The judicial performance review component allows for an evaluation of judges to be sent to the public.  The committee overseeing this aspect would be compromised of selected individuals made by appointing authorities.  This is important both for the judges to self-evaluate and constantly strive to improve their performance as well as for the public to have all relevant information when choosing whether or not to retain the judge.

Lastly, the plan proposes a retention election.  This crucial step allows for the people’s voice to be heard.  The public will decide whether the judge has performed his or her duties adequately.  Here, voters will elect the incumbent to a further term or vote against them returning to the bench. The public has a right to hold their judges accountable for their actions on and off the bench.

Merit selection balances the need to ensure that judges are qualified, fair and impartial with the public’s right to hold judges accountable.  Judicial elections are a political and partisan process for a nonpolitical, nonpartisan job.

If anyone would know the importance of judicial impartiality, it would certainly be a former Supreme Court justice.  Justice O’Connor recognizes this importance, it is now time for Pennsylvania legislators to follow suit.

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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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