judgesonmerit.org

In the aftermath of a fundraising record-setting election and mulitiple recusals by a new Justice seeking to avoid repeating earlier mistakes, Wisconsin is worried about the rising price of judicial elections. As former Supreme Court Justice Janine Geske explained, “the increasing amounts of money spent on campaigns that get more bitter every year is likely to hurt the court’s image.”

This is precisely our concern in Pennsylvania. Public perception is very important. Costly judicial elections do not generate confidence in the courts; instead they lead to decreased trust in the impartiality and fairness of the courts.

There is uncertainty in Tennessee about how appellate court judges will be selected now that the legislature failed to renew Tennesee’s Merit Selection system, which is scheduled to sunset next year. There is a vacancy on the Supreme Court, and apparently some hesitancy among potential applicants. This is not only because it’s not clear what the selection process will entail, but also because of specific concerns related to judicial elections.

Former Tennessee Supreme Court Justice Penny White, now a law professor, attributes the lack of applicants to concern about out-of-state money flowing in to influence judicial elections: “‘It only happens in states where there are elected judges on the bench.’”

We understand this concern, because this is what happened in Pennsylvania last year. We’ll keep watching Tennessee to see what happens there.

In a letter to the editor published this weekend in the Philadelphia Inquirer, we call upon the legislature to consider the Merit Selection bills before the summer recess. We understand that changing the way we select appellate judges is a complex issue that needs examination and discussion. We just want the opportunity to have that discussion.

“It’s time we got the chance to show we want something different than the broken electoral system. But first, the legislature must act.” Visit this page to learn about how you can tell the legislature you want a chance to talk about Merit Selection.

Once again, we’re faced with opponents who fail to recognize the inconsistencies in their own positions. In a recent post attacking Merit Selection, Dan Pero of American Courthouse demonstrates that he really prefers a judicial selection system that involves no direct public participation at all.

He’s talking about the federal system, a pure appointment system. The president nominates a judge, who then must be confirmed by the Senate. If confirmed, the judge serves for life. There’s no retention process; the judge never goes before the public in any sort of election or evaluative process.

Under Merit Selection, by contrast, after an initial four year term on the bench, the appellate judge would stand before the public in a retention election. The public would have the ultimate opportunity to determine whether the judge should continue to serve for a full ten-year term. This process is repeated every ten years thereafter (until the judge voluntarily resigns or reaches the mandatory retirement age).

We understand that the President (who nominates) and the Senators (who confirm) are elected representatives of the people and that the people are therefore represented in the federal process. We agree, and point out that this is also true in Merit Selection where the Governor nominates and the Senators confirm. But retention offers a direct role for the public to weigh in on whether the judge should remain on the bench.

So, when you’re talking about democracy and a role for the people, Merit Selection offers more than the federal system.

Iowa has used a merit selection process since 1962. Although their process is not perfect, observing judicial elections in sister states has confirmed for Iowans that they made the right choice. A June 11, 2008, editorial in The Des Moines Register addresses the problem of money in judicial elections:

Candidates must raise big money from potential litigants and law firms, and they wage campaigns that may suggest promising to take certain legal positions in exchange for votes.

This summary hits the nail on the head. No party or attorney wants to try her case against opposing counsel who has made monetary contributions to the presiding judge. No ethical judge will base her decision on which attorney’s pockets were deeper, of course. But the appearance of impropriety threatens to sully any elected judge’s reputation and threatens the judiciary’s unbiased, neutral reputation overall.

As the editorial notes, “Politics cannot be completely removed from judicial selection, but politics should not dominate, lest candidates be expected to make promises about how they will rule.”

We agree with this wise assessment. And though we can’t get politics completely out of the process of selecting appellate court judges, we can get the money out. We should follow Iowa’s good example and choose Merit Selection.

Despite our best efforts, Merit Selection opponents persist in spreading misinformation about what Merit Selection is, how it works and why supporters wish to implement it for Pennsylvania’s appellate courts.

Opponents latch onto buzzwords like “democracy” while totally ignoring that democracy includes giving the public the chance to weigh in on important issues like how we select appellate judges. Those who think about these issues understand that you can’t cloak yourself as a protector of democratic values while fighting against allowing the people to decide the best way to select appellate judges.

It’s not democratic to block a public referendum on a critical issue of governance and deprive the people of the opportunity to vote on the question. It’s not democratic to scare the public into thinking the issue at hand is something different than a choice about whether to change the process for picking judges.

Reasonable people can and do disagree about how Pennsylvania should choose appellate judges. We’re ready and willing to engage in discussion and debate about this, for education is the only way to make an informed decision on this critical issue.

We urge you to be part of these discussions and to beware of misinformation, especially when it comes cloaked in pretty language about democracy.

Voices Of Merit is an occasional series featuring insights from places where Merit Selection is already at work.

In Maricopa County, Arizona, Superior Court judges have been chosen by Merit Selection since 1974, after a voter-ratified constitutional change. The court publishes a brochure with the straightforward title Merit Selection Of Judges. It explains how the switch to Merit Selection has helped to create a court of skilled, diverse and fair-minded judges, “free from political debts that supporters may expect to be paid.” These are exactly the goals we have in mind for Pennsylvania’s appellate courts.

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 #6: Merit Selection supporters want to do away with all elections.

This is a favorite scare tactic of opponents of Merit Selection, usually worded as a question; “While we’re at it, why not replace election of the governor or the legislature with Merit Selection too?” It suggests, falsely, that supporters of Merit Selection of appellate judges plan to somehow create a world where nobody votes for anything, and the entire government is appointed rather than elected.

The truth is that Merit Selection supporters aren’t trying to replace election of all public officials. We think that Merit Selection is a better way to select appellate judges because judges are different from other elected officials. Judges are sworn to act impartially, to apply the law without regard for personal preference, political pressure or the interests of campaign contributors.

Impartiality isn’t a requirement for other officials, like governors, senators, representatives and mayors. Candidates for those offices make promises in order to raise money and win votes. Donors give money to these campaigns with the expectation that the candidates will vote or act a certain way if elected.

Because the judiciary has to place the law above all other considerations, it’s different from the other branches of government. It doesn’t make sense to treat judges like political officials up until the moment they start doing their jobs. Instead, we should be treating judges differently from the moment they seek to join the bench.

Merit Selection supporters want to ensure a fair, impartial judiciary for all citizens. To that end, we’re seeking to change only how appellate judges are selected. Don’t let anyone tell you any different.

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

In his Philadelphia Daily News column, John Baer laments the lack of legislative action on various reform proposals. Baer notes that some reform measures passed, such as the Open Records law, but argues that “these merely bring Pennsylvania a few of the basics of a decent democracy. Efforts at real reform lie dying.”

Baer is correct. We’re approaching the summer recess with many issues still in a holding pattern. Several of these issues require constitutional amendments, which must be passed before the summer recess in order to have enough time for the constitutionally-mandated publication to occur. This includes both legislative redistricting and Merit Selection of appellate judges.

There’s still time left for real reform. Legislative hearings where different groups could discuss Merit Selection would be an excellent step forward. As the pressure to pass the new budget becomes more urgent, its important that our state legislators know that we want reform to stay on the agenda. Tell them it’s not too late.

In an opinion piece in Madison’s Capital Times, Common Cause in Wisconsin director Jay Heck predicts “the most ugly and expensive state Supreme Court election in Wisconsin’s history in 2009.” This after last years’ race, which saw special interest groups outspending the candidates by a factor of 11 to 1 on television ads.

Pennsylvania is in a similar situation. In 2007, a Virginia-based special interest group spent over a million dollars on ads supporting one candidate for the Pennsylvania Supreme Court. Because the ads didn’t use key words like “vote for” or “elect,” the sponsoring group was found not to be subject to Pennsylvania’s regulations governing corporate campaign contributions.

The best way to combat the inevitable influx of special interest money is to get money out of the process of selecting appellate judges. Merit Selection of appellate judges makes qualifications, not campaign spending, the most important thing for a judicial candidate. We need to make this change in Pennsylvania, before our judicial elections become the ugly ones.