judgesonmerit.org

In a May 6th editorial, the Austin American-Statesman discussed a Texas Supreme Court ruling in favor of builder Bob Perry, who had donated thousands of dollars to the campaigns of every justice on the court. The paper concluded that “it is impossible not to be cynical about the poisonous effect of money on justice.”

When thousands of dollars are flowing to judicial candidates, their fairness and impartiality are in doubt. And a ruling like the one favoring a huge donor like Perry undermines the ideal of judicial integrity, even if the decision is on sound legal footing.

The American-Statesman recognizes that court rulings in favor of big campaign donors, no matter how correct or just, are tainted with questions and uncertainty about whether the money influenced the decision. This undermines public confidence in the courts.

Merit Selection solves this dilemma. It gets judges out of the fundraising business. It will help ensure that Pennsylvania’s appellate judges can’t be accused of favoring campaign donors in their decisions. Such accusations have recently been made in West Virginia, and now in Texas. Switching to Merit Selection of Pennsylvania’s appellate judges will make sure that can’t happen here.

As the campaign for Merit Selection progresses, we hear some inaccurate arguments repeated by those who oppose Merit Selection. In an effort to set the record straight, we’ll reveal the truth and clear up these myths.

Myth #5: All Merit Selection Systems Are the Same
Someone once said there as many different judicial selection systems as there are snowflakes. While that’s a bit of an exaggeration, it’s true that judicial selection systems differ greatly depending on where you are. This is also true of Merit Selection systems.

The proposal to implement Merit Selection for Pennsylvania’s appellate courts incorporates the best parts of other states’ systems, and corrects aspects of those systems that are less successful. We outline below how the proposal for Pennsylvania’s appellate courts differs from the systems used by other states. (Visit the American Judicature Society to learn more about other Merit Selection systems.)

The Nominating Commission is Appointed by Elected Officials and Non-elected Entities
Like other states’ nominating commissions, elected officials like the Governor and legislative leaders have a role in appointing members of the nominating commission. However, under the unique Pennsylvania proposal, non-elected entities, including civic organizations, law school deans, unions, business organizations, nonlawyer professional associations and public safety organizations also appoint members to the nominating commission.

The Governor Cannot Request Additional Lists or Additional Names of Recommended Candidates from the Nominating Commission
Under the proposed plan, the Governor is bound to nominate from the nominating commission’s list of recommended candidates. The Governor may not reject the list or request that other names be added to it. This is different from the Merit Selection systems in place in several states, including Delaware, Massachusetts, Minnesota and Tennessee.

The Process Involves a Role for the Governor, the Senate and the Public
Under the Pennsylvania proposal, an appellate judge can only be seated after being nominated by the Governor and confirmed by the Senate. The judge will serve a short initial term of four years, after which he or she must stand before the public in a retention election. If retained, the judge may serve a ten year term, after which he or she will again be eligible to stand for retention.

Several states don’t require legislative confirmation — including Tennessee, Wyoming, South Dakota, and Kansas. And in Massachusetts and Rhode Island, judges do not stand for retention.

Merit Selection systems are as varied and unique as the states that adopt them. We think the one being considered for Pennsylvania’s appellate courts offers a better way to select appellate judges.

Keep visiting JudgesOnMerit.org to learn the truth about Merit Selection.

This week, the Susquehana Valley Center for Public Policy’s TV show Behind the Headlines will focus on Merit Selection. PMC/PMCAction’s Lynn Marks debates Lowman Henry about how Pennsylvania should select appellate court judges. Check this link for a list of cable systems that carry the show.

On Saturday, PMC/PMCAction’s Shira Goodman will discuss judicial selection on THE BOX: Inside • Outside • On, on WHP 580 AM. Shira will discuss Merit Selection and the current elective system with host Matt Brouillette, president and CEO of the Commonwealth Foundation. The show airs on May 17th at 8 am.

This weekend, State Representative and Deputy Speaker Josh Shapiro (D -153) held a town meeting for his constituents. Shapiro identified Merit Selection of appellate judges as a critical reform for Pennsylvania. He explained why judges are different from other public officials and why it makes sense to use a different process to select them.

Representative Shapiro answered constituent questions about the pending Merit Selection proposal and invited PMC/PMCAction’s Shira Goodman to provide information about judicial selection in Pennsylvania and other states.

We thank Representative Shapiro for his strong support of Merit Selection and his co-sponsorship of House Bill 2488 & House Bill 2386. H.B. 2488 is the first step toward letting the people of Pennsylvania decide how we should choose appellate court judges.

On May 14, PMC Board Chair Bob Heim will address the Commonwealth Foundation’s Policy and Principles Luncheon. The topic is “Choosing Our Judges: Election vs. Selection.” Heim will be joined by Russ Diamond Founder and Chairman of PA Clean Sweep.

We look forward to an engaging discussion. As we reported in an earlier post, Heim and Diamond recently appeared together on 1210 Tonight with Anthony Mazzarelli (WPHT 1210 AM, the Big Talker). Although they have different views about the best way to select appellate judges, they agreed that the voters should get the chance to weigh in on this question.

This is the key point — it is time to let the voters decide.

A recent ruling by the Texas Supreme Court is getting folks talking about the corrosive effect that judicial campaign contributions have on public confidence in the fairness and impartiality of judges. The court threw out an arbitration award against a Houston homebuilder named Bob Perry, who also happens to be the most prolific campaign contributor in the state. Every justice on the nine member panel has received a contribution from Perry or his family, for a total of over $260,000.

Critics in Texas are speaking out, calling this a case of “big money influencing elected judges.” Are they right? Who knows?

No one can say for sure if campaign money influenced the decision, and it doesn’t really matter. The problem is the perception this process creates. We can understand why a litigant, facing an opponent who has given thousands of dollars to a judge, would not be confident that his or her rights will be impartially protected.

Pennsylvania, like Texas, elects all judges in expensive partisan elections, where lawyers, law firms and organizations with cases in the state courts donate to judicial campaigns. We’ve got to get the money out of the process of selecting appellate court judges.

In a joint letter to the Philadelphia Daily News, PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach respond to a critic of Merit Selection. In an earlier post, we pointed out the critic’s fundamental misunderstanding of Merit Selection and unreasonable fear of letting the voters decide the best way to choose appellate judges. In their letter, our leaders neatly sum up the problem: “[The critic] does not understand what so many voters know: Judges are different.”

Heim and Fiebach point out that judges have different responsibilities than other public officials. Politicians are expected to make promises to constituents and campaign donors. At election time, those promises – kept or not – often decide their political fate. By contrast, judges “are sworn to uphold the law in an even-handed manner without regard to personal belief, political pressure, popular will, or the preferences of campaign donors.”

“How can we expect judges to campaign like other elected officials and then, when they take the bench, expect that the public will view them differently? No wonder this system breeds a lack of public confidence.”

Our leaders close with a reminder that Merit Selection advocates want to give the people a chance to decide the best way to select appellate court judges. Critics of Merit Selection seem very worried about letting the voters make this decision. Why is that?

The West Virginia Supreme Court elections continue to make the news. Earlier we wrote about justices forced to recuse (or not) from cases involving some big campaign donors. Now, at least one justice is talking about the realities of campaign fundraising in the Mountain State. Supreme Court Chief Justice Elliot Maynard has criticized the fact that a lot of attention is paid to business donations to judicial campaigns, while contributions from lawyers and law firms go largely unreported. Justice Maynard called these different levels of scrutiny “the worst hypocrisy.”

But even such concern can’t compete with the realities of judicial elections. According to the Charleston Gazette, a new study of campaign contributions shows that Justice Maynard has raised $586,873. Of that total, $134,050 was contributed by lawyers and their relatives. Maynard is not alone — one-third of the money contributed to the five candidates running in the primaries next week has come from lawyers.

As we’ve said all along, this kind of big-money politics can create the perception that “justice is for sale.” Litigants, facing opponents who may have donated thousands of dollars to the campaign of a judge or justice, might reasonably worry about whether they will be treated fairly. Even if the ruling is completely fair and in accordance with the law, the question may linger. Did money play a part in the decision?

Pennsylvania is facing a similar crisis of faith in the judiciary. As contributions to judicial campaigns increase, it gets harder for Pennsylvania citizens to trust that justice is being fairly administered. Whether it is or not is immaterial. The perception itself can potentially taint every case that goes before our courts.

The only way to combat the perception that “justice for sale” is to get money out of the judicial selection process. Merit Selection makes strong qualifications, not fundraising prowess, the most important credential for a judicial candidate. It’s time we got judges out of the fundraising business.

To implement a Merit Selection system for the appellate courts requires a constitutional amendment. This requires passage of legislation in two consecutive legislative sessions, followed by a public referendum.

The first step is now underway. Bills containing the proposed text of the amendment, as well as the enabling legislation creating the nominating commission, are currently being considered by committees in both the Senate and the House of Representatives. The text of the proposed amendment and accompanying enabling legislation are available: SENATE BILL No. 1324 and HOUSE BILL No. 2488 (proposed amendment); SENATE BILL No. 1325 and HOUSE BILL No. 2386 (proposed enabling legislation).

A summary of the legislation is available here.

In an editorial in today’s Patriot-News, we make the case for Merit Selection of appellate court judges: Merit Selection “gets appellate judges out of the fundraising business and emphasizes qualifications. It opens pathways to the bench for qualified individuals from diverse backgrounds. This should give Pennsylvanians more confidence in the ability, fairness and impartiality of appellate courts.”

We explain the lengthy constitutional amendment process, which culminates in a public referendum. We emphasize that only the people of Pennsylvania can decide — by voting in a referendum — to change the way we pick appellate court judges.

The editorial closes with an appeal to get this issue before the people: “It’s time to let Pennsylvanians decide whether expensive, partisan elections are the best way to pick appellate court judges. Legislators should be encouraged to pass this proposed constitutional amendment and put merit selection on the ballot so that we — the voters of Pennsylvania — can decide for ourselves how to choose appellate court judges.”