judgesonmerit.org

Sworn in this past Tuesday, Tennessee’s new – and first woman – chief justice, Janice M. Holder vocalized her support of the Merit Selection system known as the “Tennessee Plan.” In fact, the entire Supreme Court wants to keep Tennessee’s current system. As Holder explains:

This court is not in favor of partisan election in which judges are obligated to raise millions of dollars for campaigns. This court is in favor of the current principles that comprise the Tennessee Plan.

Tennessee’s Supreme Court judges know that Merit Selection works in their state and how vital it is to keep the current system. That system, as we’ve written, is scheduled to sunset next year — on July 1, 2009 — if it isn’t renewed or modified. We hope that Tennessee maintains its Merit Selection system, and believe that Merit Selection will provide the best way for Pennsylvania to select its appellate judges, too.

An editorial in the South Bend Tribune decries the huge amounts of money being spent in neighboring Michigan for a single seat on the Supreme Court. It is anticipated that nearly twenty million dollars will be spent on this campaign, and at this point, the Democrats haven’t even named a candidate to challenge sitting Chief Justice Clifford Taylor. The editorial notes, “It’s lucky that justice is blind to this mess.”

Observing that the campaign is the focus of a battle over tort reform efforts, the South Bend Tribune boasts “Indiana, of course, sidesteps this particular problem by appointing its Supreme Court justices.” In fact, Indiana’s appellate courts are selected through a Merit Selection process, with a nominating commission, appointment by the governor and retention elections.

The editorial concludes by recognizing that Indiana’s system might not work for every state, but recommending that Michigan “take a look at revising the selection process for its high court so that the best candidate is determined by his or her qualifications and the input of citizens — not by special interests seeking an advocate.” This is good advice for Michigan, and for Pennsylvania, where we elect all our appellate judges in partisan elections.

Editorials in the Montgomery Advertiser and the Tuscaloosa News, echoing the call of a current Supreme Court candidate, urge the state to reject judicial elections in favor of Merit Selection.

The Montgomery Advertiser points out the escalating costs of judicial elections and the problems inherent in requiring future judges to raise campaign funds from lawyers and organizations likely to appear before them in the future:

Over the years, the Montgomery Advertiser’s editorial board has asked dozens of judicial candidates if they are affected by these large campaign donations. Almost invariably, each candidate says that he or she can set aside those donations in his or her mind and rule fairly on issues involving the donors.

But asked another way, not about each of them specifically but about judges in general, and many of them admit that it is a problem for some judges.

The Tuscaloosa News asserts: “the perception is that justice is for sale in Alabama. The unconscionable spending distorts the election process at the same time that it erodes the faith of state residents in an independent judiciary.”

Alabama is on the short list of states, like Pennsylvania, that elect all judges in partisan elections. The Montgomery Advertiser thinks its time for a change:

There are several variations on the merit selection theme being used by other states, but virtually any of them would be a major improvement on the nasty, costly and demeaning way Alabama now chooses its judiciary.

The Tuscaloosa News agrees “at least for the state’s highest — and most expensive — appellate offices.”

We hope the people of Alabama will heed the call for reform, and we hope the people of Pennsylvania will also realize that Merit Selection is a better way to select appellate judges.

The Topeka Capital-Journal reports that the longest serving judge in Shawnee County, KS is a fan of Merit Selection, despite the fact that he was elected to the bench. In fact, at the time of his retirement last week, Judge Matthew Dowd was one of only 2 judges in the County who had been elected before the County implemented a Merit Selection system. Dowd explained that despite his own success in the electoral process:

‘[M]y judgment is the merit selection retention system is the best way. With today’s high-dollar campaigns and TV and media pressure, there is more likelihood of getting a ringer, who is articulate and has a lot of funds but is not really the type of person who should be a judge.’

Judge Dowd also reflected on a major problem inherent in electing judges — it requires them to be in the fundraising business:

Most campaigns for judges are funded by lawyers, making it suspect because a lawyer either has or hasn’t donated to the campaign, giving the appearance of impairing the judge’s independence. . .

Thanks, Judge Dowd, for letting us know what a judge thinks about how we should be selecting judges.

Gordon L. Doerfer, president of the American Judicature Society (AJS), has issued a statement in response to the Wall Street Journal’s most recent attack on Merit Selection. In this statement, AJS sets the record straight about the composition of judicial nominating commissions and the history of success of state Merit Selection systems.

AJS points out that the Journal’s recent characterization of the Florida and Missouri nominating commissions as dominated by plaintiffs’ trial lawyers is wrong. In fact, lawyers of all types are involved in selecting or suggesting lawyer members of these commissions. AJS goes on to explain that a recent survey of corporate attorneys revealed that they rank state courts selected through Merit Selection uniformly higher than state courts selected by partisan elections. It is a myth that judicial nominating commissions are dominated by a particular constituency or segment of the bar.  In fact, most nominating commissions include several seats for nonlawyers.

The cornerstone of Merit Selection is the use of a nominating commission to screen and evaluate candidates. This is the special element lacking in both elective and purely appointive systems.

A blanket condemnation of judicial nominating commissions is irresponsible and misleading. It also demeans the work of the dedicated commissioners, all of whom serve without compensation, and calls into questions the judgment of the many governors of all political parties who rely upon them to nominate the best qualified judges.

Thanks, AJS, for setting the record straight about judicial nominating commissions.

An Associated Press article chronicles the rising costs of judicial elections, focusing on current contests in the Midwest. This sounds just like what we’ve been seeing in Pennsylvania — rising contributions from lawyers and entities likely to come before the courts, fundraising records being broken and spending by third party groups to influence elections.

The article questions business representatives and trial lawyers about why they give to these campaigns. But the issue is put into real focus by Charlie Hall of Justice At Stake who explains why requiring groups to disclose their donors and requiring judges to recuse when donors appear before them makes sense: “‘The thinking is, if you took away the financial incentives for having your judges on the court, you would dry up the money.’”

It’s time to get money out of the judicial selection process and get judges out of the fundraising business. We think Merit Selection is the way to do this for the appellate courts of Pennsylvania.

On August 23, the WSJ continued its criticism of Merit Selection, to which Gavel Grab posted a thoughtful and thought-provoking response. Gavel Grab poses an important question:

As the Journal continues its critique of merit selection, it should perhaps acknowledge the downsides of its own position. If the public has concluded that big-money politics can twist justice, is that a belief that the Journal would like to see become more common?

This is a major public problem on which the Journal has been, and remains, stubbornly silent. And it is not a liberal or conservative issue, either.

Judges should not be in the fundraising business, but elections require that they be. As fundraising records continue to be broken in judicial elections throughout the country, public confidence in the courts continues to erode. We need a better way to select appellate judges, one that gets them out of the fundraising business. Merit Selection accomplishes this.

An editorial in the Roanoke Times calls on Virigina to move away from its system of having the legislature appoint judges and find a better way to pick judges. The preferred method is Merit Selection. Why? “Electing judges, even in nonpartisan elections, is problematic because it forces judges to engage in fundraising and campaigning, either of which can raise questions about a judge’s impartiality.”

Well put. And as the editorial recognizes, “setting up an effective system for merit appointment, free of political influence, is not exactly an easy task.” We’re working on it for the appellate courts of Pennsylvania, because the public deserves the most qualified, fair and impartial judges — and those who are perceived by all to be so. And the best way to get them is to keep them out of the fundraising business.

Last week, we wrote about the Wall Street Journal’s August 14th editorial criticizing Merit Selection. Although the Journal did publish several letters in response (including letters from the American Bar Association and Justice At Stake), unfortunately the letter submitted by PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach was not among them. Therefore, we are publishing it here:

Your editorial “The ABA Plots a Judicial Coup” (August 14, 2008) mischaracterizes merit selection systems and pointedly ignores how successful merit selection has been on the state level in avoiding the many infirmities of elective systems. We write to clarify the benefits of merit selection at the state level, without taking a position on the American Bar Association’s proposal regarding the federal judicial appointment process.

Many judges will tell you they abhor having to raise money to run in judicial elections — with the money coming from the very same lawyers, organizations and special interest groups that may later appear before them. Polls understandably demonstrate the terrible public perception that results from this fundraising, but elections require money and judges have little choice. Many who would make good judges refuse to participate in the process for just this reason. Moreover, it is difficult for the voters to find relevant information about the candidates who are running for the appellate bench. It just doesn’t make sense to use the electoral system to select appellate judges.

Your broad-brush criticism of merit selection systems suggests that you actually would prefer a system that puts on the bench only judges of certain political and philosophical leanings – provided that they lean the right way. This isn’t democratic or populist - it’s seeking a system that can best be manipulated by powerful political interests on either side. Merit selection is designed to get the most highly qualified, fair and impartial judges on the bench, not just judges from one side of the political spectrum. In fact, judges should not owe an allegiance to any political party or constituency. Their sole fealty should be to the law.

Many states that use merit selection include lawyers and nonlawyers on their nominating commissions. In fact, under a proposal being considered in the Pennsylvania state legislature, doctors, fire fighters, teachers, used car salesmen and others would have an opportunity to serve on the nominating commission. This provision for “public members” or regular folks demonstrates an appreciation for the important perspective nonlawyers bring to the process of examining candidates for the bench.

Finally, you neglect to report that the efforts to “undo” merit selection are facing great opposition in Tennessee, Missouri and Kansas. Once states or counties eliminate expensive and divisive partisan elections for judges, they are loath to turn back. Merit selection works at the state level and that is why we are seeking to bring merit selection to the statewide appellate courts of Pennsylvania.

Over at the Commonwealth Foundation’s Policy Blog, Nathan Benefield asks why changing to nonpartisan elections isn’t enough of a reform to solve the problems inherent in judicial elections. The answer is two-fold. First, the problem isn’t just the involvement of political parties in the process. It’s the money and the whole need to act political, raise money, make campaign promises –ie, act like any other elected official when judges are different.

Second, in states that have gone the nonpartisan route, folks will tell you that almost everyone knows which party each candidate is affiliated with. There really is no such thing as a nonpartisan election. And, of course, with or without the party label, these candidates are still raising money from lawyers and entities likely to appear before them in the future.

So, moving to nonpartisan elections isn’t the solution to the problems with electing judges. Merit Selection is a better way to pick appellate court judges.