judgesonmerit.org

Now is the time for action on Merit Selection! Please contact the members of the House Judiciary Committee and ask them to vote YES on sending Merit Selection Bills (H.B. 1815 and H.B. 1816) to the full House for consideration.

The vote is scheduled for next Tuesday, May 22.

Bringing the Merit Selection Bills to the floor is a crucial step in amending the constitution – a process that culminates with Pennsylvanians having the opportunity to vote in a referendum on whether to change the current judicial selection process. Pennsylvanians deserve the right to decide whether we should change how we select appellate judges.

In a post on the New York Times Editorial Page Editor’s Blog, Andrew Rosenthal asserts:

Elections are the worst way to select judges. The process leaves judges beholden to party bosses, wealthy donors, and the whims of the very, very few people who actually bother to vote.

Rosenthal focuses on Michigan and the recent report of its Judicial Selection Task Force.  He notes the Task Force’s recommendations to make elections truly nonpartisan and require disclosure of all election expenditures and donations.  But he opines that:

These are fine, civic-minded ideas, but they’re just band-aids. The best way to fix the system is to change it—to replace elections with gubernatorial appointments based on merit. A bipartisan nominating commission would screen candidates according to defined legal standards.

We agree that elections are not the right way to select judges.  Merit Selection is designed to bring the most qualified, fair and impartial judges to the bench, and it does so through a process that gets those future judges out of the fundraising business. We hope the Pennsylvania legislature will give Pennsylvanians the opportunity to decide in a referendum election whether there is a better way to select our appellate court judges.  Let the House Judiciary Committee know you want the opportunity to decide.

A Philadelphia Weekly Blog, Philly Now, points out the problems inherent in electing judges.  The opener is catchy:

Quick. Who was the last judge you voted for?

If your answer was, “How the hell should I know?” then congratulations, you are the crowd the co-sponsors of Pennsylvania House Bills 1815 and 1816 are catering to. Those bills, recently gaining steam in Harrisburg, would get rid of the current system Pennsylvania employs, in which judges are elected by the people.

The post cites the Urban League’s testimony before the House Judiciary Committee in March, noting that judges have to run for office like other politicians and raise campaign funds from parties likely to appear before them in court.  It also notes that our current electoral system has not been successful in bringing racial diversity to our appellate courts.

The post also quotes the Urban League’s praise for the Merit Selection legislation: “The bills… offer ‘opportunities for qualified candidates without access to money and from diverse backgrounds to reach the bench. No person is excluded from the process due to a lack of resources or political connections.’”

The legislation will soon be coming up for a vote in the House Judiciary Committee. Let the members know you  want the opportunity to decide if there is a better way to select appellate court judges.

An editorial in the Colorado Statesman on Friday extolled the virtues of the Colorado system of judicial selection. Coloradoans have chosen their judges in a Merit Selection process since 1966, the year Merit Selection replaced the partisan election process that had been in place since Colorado became a state in 1876.

Former Colorado Supreme Court Justice Rebecca Love Kourlis called Colorado “the Gold Standard” of judicial selection systems.

The Colorado system employs bipartisan nominating commissions made up of a combination of lawyers and nonlawyers where no more than a simple majority of the commission is of the same political party. The commissions recommend either two or three qualified judicial candidates and the governor must make an appointment from the list of recommended candidates within 15 days.

After the judge has served at least two years, he or she will face a retention election where voters have the opportunity to decide whether the judge should be retain their seat.  In preparation for the public retention election, the Judicial Performance Commission evaluates the judge’s performance on a number of fronts, including reviews of the judge gathered from surveys sent to attorneys, jurors, court users, court staff and other judges.

This system ensures that Colorado has the most highly qualified and impartial judges. Since judges do not need to campaign, there is no appearance of justice being for sale to the highest bidder, and public retention elections ensure a role for the public in determining who should serve on the bench.

In contrast to Colorado, Pennsylvania’s system of partisan judicial elections falls short. Judges appear to be influenced by political concerns and the public worries about the influence of campaign contributions on judicial decisions. Hopefully, by switching to a merit selection system, Pennsylvania can eventually live up to the “gold standard” set by Colorado.

The Michigan Judicial Selection Task Force, a bipartisan commission made up of lawyers, judges and academics, issued a report last week proposing significant changes to the Michigan judicial selection process. Currently, judges in Michigan are nominated by their party and then elected in a nonpartisan election for renewable terms of eight years. Both the selection process and the term length are established by the Michigan Constitution.

The report highlighted the fact that in the last 10 years, approximately 86% of all litigants who appeared before the state Supreme Court had donated to the justices’ campaigns. Further, in the most recent election cycle, it has become impossible to know from whom the justices received campaign contributions. This is because of the influx of third party contributors who are not required to reveal the names of their donors.

The seven task force recommendations cover such topics as the recommended age of retirement for judges, voter education and campaign spending by judicial candidates. The 60 page report details the current problems with the system and generally describes the proposed solutions to each, including the text of suggested constitutional amendments and rule changes.

The task force report recommends that Michigan replace its current system of partisan nomination with nonpartisan primary elections for Supreme Court justices. The report argues that this change would combat the public perception that Michigan judges are partisan and make the judicial selection process consistent across all levels of the Michigan judiciary.

The majority of the recommendations made by the task force are unanimous. This includes the proposal that mid-term judicial appointments be made by through merit selection rather than the current system of pure gubernatorial appointment. Further, the task force report states that “many members of the Task Force” support the implementation of a merit selection system for all Supreme Court openings. Since replacing judicial elections with a merit selection system would require a constitutional amendment, the Task Force members “urge immediate action to give effect to the common-sense electoral reforms proposed elsewhere in this report”. However, the report expresses the hope of the Task Force members that Michigan voters implement merit selection for Supreme Court justices.

An editorial in the Detroit Free Press praises the Task Force for its work, but paints a less than hopeful picture of any kind of timely change to the judicial campaign finance system. Although “State legislators can enact such disclosure requirements in less time than it takes to cut business taxes, and Kelly, Ryan & Co. cite polling data suggesting that overwhelming majorities of both Republicans (88%) and Democrats (86%) believe such requirements are overdue,” the unfortunate reality is that such reforms are unlikely to happen.

As our own fight for merit selection has demonstrated, systemic change of this magnitude does not come quickly or easily. However, the importance of these changes mandates that we continue to advocate for reform of the judicial selection process. Hopefully, the Michigan Judicial Task Force report will act as a catalyst for the Michigan legislators and voters to take a hard look at the current system and to begin the discussion on how to improve it.

More information about the current Michigan judicial selection process is available here.

An editorial in the Florida Herald-Tribune praises the Florida bar initiative to educate voters about the Florida judicial selection process. The initiative is part of a recent push by the Florida bar in support of the current system of Merit Selection. Judges in Florida are nominated by the Judicial Nominating Commission, which recommends a “short-list” of names to the governor for appointment. Once appointed to the bench, judges serve a six-year term before facing a retention election.

The editorial argues that the Florida system has resulted in a diversified bench and mostly protected the judiciary from political pressures. Specifically, “the merit-retention system has provided a degree of political accountability — justices and judges face the voters — blended with a substantial, beneficial degree of judicial independence.”

There are three Florida judges who are up for retention this fall, two of whom are facing organized opposition. The opponents have argued that the Florida bar’s education initiative is simply another way to pander to the judiciary. The editorial refuses to engage with this argument, and instead praises the bar for their efforts in voter education, regardless of the motivation.

Opponents of Merit Selection often argue that the process takes away the public’s right to vote and be involved in the selection of the judiciary. This is a mischaracterization of the process. Retention elections fill that void and give the public the opportunity to decide whether judges are doing the job they were selected to do.  Additionally, both nominating commissions and appointing governors generally accept public input on judicial candidates. In the Pennsylvania plan, the public would have the opportunity to offer input during the state Senate confirmation hearings.

We agree that an educated voting public is crucial for the retention component of Merit Selection to be meaningful. The education initiative of the Florida bar is a positive step toward a more informed voting public and will ultimately strengthen their existing system.

The Pittsburgh Tribune-Review reports that some candidates for the 2013 judicial elections in Allegheny County have announced their candidacies on Facebook. Well, of course they have. Facebook is free, easy to use, and a great way to get a message out.  But, at least one candidate — an assistant district attorney — has taken down his page in light of questions about the propriety of using Facebook at this early stage.

The Canons of Judicial Conduct limit when judicial campaigns can raise money, but there are not clear rules about “announcing one’s candidacy.”  As PMC’s Shira Goodman explained, however, “People would see this person is running for judge and the person might say, ‘Maybe I should give them money,’ ” Goodman said.  In short, beginning a campaign this early and this way can have unintended consequences.

But the real problem is not Facebook; it’s that we choose judges through a system that makes them campaign and raise funds.  Electing judges is the real recipe for trouble.

The state legislature returns to business next week, and one of the items still pending before the House Judiciary Committee are the Merit Selection Bills (H.B. 1815 and H.B. 1816).  To start the constitutional amendment process — which will  culminate with the people voting on whether to change how we pick appellate court judges — the House Judiciary Committee must first vote the bills out.  This would send the bills to the full House for consideration.  Please contact members of the House Judiciary Committee, tell them you support Merit Selection, and ask them to vote the bills out.  Remember, this is a critical step to getting this issue on the ballot so the people of Pennsylvania can decide whether it’s time to change how we select appellate court judges.

The Miami Herald has reported that Florida’s Judicial Nominating Commission has adopted a policy that bans members of the commission from financially contributing to or actively participating in any campaigns for state judicial elections. This measure prevents the commission, which compiles a list of candidates from which the governor must select his appointees for appellate judicial seats, from entangling itself in races for local office or retention elections in which the commission has no role. Supporters of the measure pointed out that such involvement in campaigns creates an appearance of impropriety, and that commission members should refrain from being active in lower court races in the event those judges are eventually nominated to the Supreme Court.

Opponents produced a compromise measure that would have merely prevented commission members from explicitly using their positions to support campaigns. The commission rejected this proposal.

We believe that a detached, politically-disinterested nominating commission is essential to the functioning of an effective Merit Selection system. We also believe that commission members, like judges, should not become mouthpieces for political causes or allow their own leanings to jeopardize the public standing of the judiciary. As such, we support the recent resolution of Florida’s Judicial Nominating Commission, and hope that if the people of Pennsylvania get the chance to vote for Merit Selection, that any future nominating commissions are governed by a similar code of conduct.