Sep 24 2015
PMC Executive Director Lynn Marks appeared on national news show Ali Velshi On Target last month to advocate for merit selection of judges. Although Velshi correctly stated that opponents of merit selection often believe that the people deserve the opportunity to elect their judiciary and hold judges accountable for their actions, judges actually wind up catering to a very different constituency: lawyers and special interest groups who hope to influence court decisions.
Enormous amounts of resources are required to run a successful judicial campaign. The seven candidates in the upcoming PA Supreme Court election for three vacancies, for example, have already raised $8.4 million. Much of this money comes from attorneys or special interest groups who have an interest in which judges reach or stay on the bench. It also creates significant problems for judges, who are simultaneously charged with the duty to interpret the law impartially and encouraged to favor those who have contributed to their campaigns. Though bias in court rulings resulting from campaign contributions is difficult to prove, an often-touted New York Times study from 2006 examined a group of judges in Ohio and found that they voted in favor of contributors 70 percent of the time. Even if judges were never swayed by campaign contributions, the current system still undermines the public’s confidence in the judiciary.
Marks was quick to point out that neither judges nor donors are directly to blame for this phenomenon. Lawyers who donate to a judicial candidate’s Super PAC are simply adhering to what has become an industry standard, while judges recognize campaign fundraising as a necessary evil. Jefferson County Common Pleas Judge John Foradora said that “I don’t want to be involved in all this money raising and special interest stuff that’s put a cloud over the court. But I also don’t know how to get my message out without it.”
Furthermore, electing judges requires candidates to fundraise like members of the legislative or executive branches , but overlooks a crucial distinction between their roles: An elected legislator is generally elected to advance policy that is beneficial to constituents, including campaign donors. A judge does not have constituents. “We’re used to seeing money in the other races,” Marks told Velshi. “But judges are different. Judges make decisions solely on the facts of the law, not what they said on the campaign trail or what their contributors wanted.”
Marks argued that merit selection of judges would avoid many of the problems with judicial elections. Currently, twenty-three states choose some or all of their judges through merit selection. Pennsylvanians for Modern Courts, along with bipartisan legislative allies and a growing number of legal, civic, business and religious organizations are currently working to move House Bill 1336, a constitutional amendment changing the way we select appellate court judges through the legislature. In House Bill 1336, appellate court judicial candidates are recommended for gubernatorial appointment by a bipartisan citizens’ nominating committee. After Senate confirmation and completing an initial, shortened term, judges are retained via a general election. Merit selection eliminates the need for campaign fundraising while honoring the democratic process. It frees judges from the requirements of fundraising and partisan politics and puts qualifications to the forefront of the judicial selection process. Most importantly, Marks said, “it puts fairness and impartiality at the center of the question.”