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In a poignant letter published in the Leader-Telegram, one Wisconsin voter describes how disillusioned recent judicial elections have left him:

The last two state Supreme Court races have destroyed the respect I once had [for the judicial branch]. These races are by law supposed to be nonpartisan, but these last two races have been closer to a cattle auction than any elections I have ever seen.

This captures the essence of the problem with judicial elections. Because of the partisanship and money involved, regular people lose confidence in the impartiality of the judiciary. The third branch of government has neither the power of the sword nor the purse. Its power stems from the trust of the people. By electing judges, we squander that trust.

The Wisconsin voter laments, “Wisconsin may be the national leader of the worst examples of how not to select the top judicial leaders of state government.” Hopefully, Pennsylvanians will choose Merit Selection for the appellate courts and avoid similar disillusionment and further erosion in public confidence in the courts.

An editorial in The Tuscaloosa News reminds us that multi-million dollar judicial elections have a corrosive effect on the courts and negatively influence public perception. Alabama has endured some of the country’s costliest judicial elections, with tremendous amounts of money from business interests being poured into various judges’ campaigns. However, there is a growing awareness of and frustration with a court under the influence of big money. In short, “reform is needed:”

To a person, elected jurists say that campaign contributions play no role in their decision-making. But as one noted judge said, trying to ignore big money in judicial elections is like trying to ignore the crocodile in your bath tub.

Merit Selection, on the other hand, takes the crocodile out of the tub. It eliminates the need for candidates to raise campaign money, and allows them to run based on their legal experience and knowledge of the law. We hope that Pennsylvania will soon be able to avoid the mess created by judicial elections and adopt Merit Selection for its appellate courts.

California is worried about how increasingly expensive partisan judicial elections affect public perceptions of the courts. California Supreme Justice Ming Chin neatly summed up the problem. “The huge sum of money now required in many states in judicial elections has changed things. . . . How are you going to maintain an impartial court when judges have to raise large sums of money to get elected?”

We are certain that most judges apply the law fairly to the facts of each case before them. But when even a state supreme court justice raises the question of the influence of money on judicial decision-making, the public must surely be worried about this, too.

Justice Chin also pointed out that judges are different from other public officials and that judicial selection should be different too:

In the simplest terms, voters need to evaluate judges differently that the divisive, issue-driven campaigns familiar with other elected officials. Chin then ticked off the standard for evaluating judges, including commitment to the rule of law, the ability to listen impartially to the face of a case and then the courage to apply the law to those facts, ‘regardless of his or her opinion on the issue.’

But when donors wave huge piles of money to bolster the candidacy of a judge solely on party affiliation or a judge’s opinion on controversial issues, it will be increasingly difficult for judges to impartially apply the law.

Litigants shouldn’t have to fear that a judge has been influenced by a contributor to her campaign. Merit Selection, which takes money out of the equation, goes a long way to improving the public’s perception of impartiality in the courts.

Donald Hoffman, a freelance columnist, has written a thoughtful piece in the Allentown Morning Call on the need for reform and improvement throughout Pennsylvania’s state government. He’s included a concise summary of the advantages of Merit Selection:

Every judicial election, voters choose judges who’ve maneuvered the path of partisan politics but whose names they’ve never heard of. Judges should be nominated by the executive [and] scrutinized for approval by legislators, and serve independently of political party bosses and campaigns.

Well put. Hoffman identifies two areas that Merit Selection addresses better than partisan elections: seating the most qualified judges, and having judges decide cases impartially.

In the Merit Selection system that’s been proposed for Pennsylvania’s appellate courts, the state senate would evaluate nominees who have also been vetted by a nonpartisan citizen-based nominating commission and the governor. These three stages of evaluation help ensure that we get superior jurists on the bench. Then, those judges stand before the public in nonpartisan retention elections; first after a four-year term and every ten years thereafter.

The benefits of so many layers of evaluation and scrutiny don’t just mean that we get the most qualified judges on the appellate courts. It also enables the judges to serve impartially, removed from the influence of special interests that contribute to judicial election campaigns.

We’re happy to see Merit Selection included as part of a call for meaningful reform in Pennsylvania government.

In a weekend commentary in the St. Louis Dispatch, Missouri Bar President Charlie J. Harris praises the judicial selection system used in Missouri, the model for many other Merit Selection plans and proposals:

No million-dollar campaigns, no vicious attack ads. . . . The beauty of the plan is that judicial candidates don’t have to curry the favor of either political party or prowl about for campaign contributions. What judicial candidates do need are impeccable credentials, a strong understanding of the law and the standing within the legal profession and their community to gain the trust and respect of others.

Harris contrasted the situation in Missouri with the ugly judicial elections in many states, such as Pennsylvania, noting: “In those states, voters are barraged by demeaning political attack ads, designed to destroy the opposing candidate’s credibility. The content of those ads encourages the public to think poorly of the candidate, and the money behind the ads raises serious concerns.”

The proposal to bring Merit Selection to Pennsylvania includes a framework based on the Missouri Plan, modified to reflect the unique cultural and political history of Pennsylvania. We hope Pennsylvania will soon join states like Missouri that choose their appellate court judges through Merit Selection.

William M. Barker, current Chief Justice of the Tennessee supreme court, is retiring, and he gave an “exit interview” to the Nashville City Paper, praising the state’s judiciary as the best he’s ever seen, because of the Merit Selection plan under which they were chosen and now serve:

“We have right now in Tennessee the best judiciary that I can remember in my 40-year legal career,” Barker said. “And it’s because we have had good people chosen.”

The Tennessee Plan was instituted in the early 1970s. Justice Barker has been an eyewitness to its success and effectiveness through his career, first as an attorney in private practice from 1967 to 1983, then as a judge, and now as a state supreme court justice. He explains that abandoning the Tennessee Plan for contested elections is a bad idea, for two reasons. First, judges must rule according to the law and the Constitution, not by a tyranny of the majority where judges may feel beholden to popular opinion.

Justice Barker’s second reason why the Tennessee legislature should reauthorize the Plan is that it keeps money out of judicial elections:

“Now who gives that kind of money [$13 million in Alabama in 2006] to a judge candidate except those who want to influence decisions,” Barker said. “And I just think that’s unseemly. So even though we’ve got a few warts and perhaps our system needs to be tweaked and perhaps our system can be improved, fundamentally it’s the best system in my view.”

Justice Barker further points out that, despite any claimed current “serious doubts” about the law, state constitutional challenges to the Tennessee Plan failed in both 1973 and 1996. As for improving the system, Justice Barker appears to acknowledge, as we do, that any plan for selecting the judiciary has its flaws — but Merit Selection addresses the appearance of unfairness better than do contested elections because it removes the influence of money from the process.

In a press release issued today, PMC and PMCAction Executive Director Lynn Marks noted the great strides made by judicial reform advocates in Pennsylvania this year. Civic, business and legal groups, and reform-minded legislators have joined a growing coalition working to replace partisan election of Pennsylvania’s appellate judges with a Merit Selection system. Marks praises their efforts, and looks forward to more progress in the coming legislative session.

Another Mississippi newspaper is warning about the effects of massive campaign donations on the justice dispensed in the state’s appellate courts. An editorial in the Greenwood Commonwealth considers recent trends in verdicts issued by the Mississippi Supreme Court, and suggests that campaign contributions might be influencing the Court’s decisions. “For the coming elections,” the paper warns, “voters should educate themselves on who is contributing to whom because that’s a good sign as to how they’ll rule if elected.”

The piece offers a solution that would remove any suggestion that campaign contributions influence verdicts: do away with elections for appellate judges.

What is needed on the court, of course, are fair-minded jurists who are not beholden to big contributors… This could be better accomplished through a system of appointing, rather than electing, appellate court judges.

Merit Selection does exactly that. Merit Selected judges don’t have to raise campaign funds, so any apperance of bias toward campaign donors is eliminated. It’s time to bring Merit Selection to Pennsylvania, so that our appellate judges can rule based on the law, free from any suggestion that they’re just following the money.

In November, voters in Johnson County, Kansas, will decide whether to replace their system of Merit Selection with partisan elections. An editorial from the Lawrence (Kansas) Journal-World, critically analyzing the proposed change, hits the nail on the head:

The proponents of the Johnson County change say partisan elections would make judges more accountable to the public. That may be true, but while judges are public servants, their job actually requires their first loyalty to be to the law, not to the constituents they serve. Making judges more directly accountable to the voting public creates at least the appearance that a judge’s decisions, which should be focused purely on the law, might be influenced by those who financially supported the judge’s campaign.

Money should play no role in judicial decision-making. But requiring judges to run expensive election campaigns creates the impression that money matters — not just in getting elected, but maybe even for what happens after the judge takes the bench. This undermines public confidence in the courts and impairs the ability of the court system to stand as a trusted, independent third branch of governent.

Amidst the coverage of recent interim appointments to Pennsylvania’s appellate courts, we’ve tried to make it clear that the system used to select these judges is not Merit Selection. A recent report on the appointments from Radio PA correspondent Matt Paul features PMC Associate Director Shira Goodman, who explains how Merit Selection differs from the highly-politicized appointment process. You can listen to the mp3 here.