Archive for August, 2008

Aug 29 2008

Setting the Record Straight About Nominating Commissions

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.

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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.

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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.

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Aug 28 2008

And The Money Keeps Rolling In

Published by under Judges,News

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.

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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.

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Aug 27 2008

Get Judges Out of the Fundraising Business

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.

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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.

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Aug 27 2008

Virginia Looking for a Better Way to Pick Judges

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.”

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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.

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Aug 26 2008

A Letter That Didn’t Make It Into the Wall Street Journal

Published by under Judges,Merit Selection,Opinion

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.

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Aug 25 2008

Non-partisan Elections Not A Real Solution

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.

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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.

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Aug 21 2008

Voices of Merit: Save the Tennessee Plan

There is an insightful editorial in the Tennessean urging Tennessee to maintain its Merit Selection system. Buck Lewis, who’s seen the Tennessee Merit Selection system from the perspective of a nominating commission member and a disappointed judicial candidate, wants the people of Tennessee to know that the system works.

That’s right, Mr. Lewis first failed to be nominated by the commission. Then, a year later, when he was recommended to fill a vacancy, his panel was rejected by the Governor due to a lack of diversity. Yet he still is a champion of Merit Selection:

More than 30 years of experience with selecting and electing judges tells me that the Tennessee Plan is the best plan we have ever had to pick our judges.

Mr. Lewis counts among his reasons for supporting Merit Selection the nominating commission’s ability to screen out unqualified applicants; the commission’s thorough vetting of candidates in a way not possible in the electoral system; and the avoidance of expensive, contentious elections.

It’s hard to imagine turning back the clock to the days when political parties nominated slates of Supreme Court judges. Tennessee would be the only state ever to scrap merit selection and revert back to raw politics.

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We hope Tennessee will heed his call, and that Pennsylvanians will also realize why Merit Selection is a better way to select appellate judges.

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Aug 20 2008

Senator Piccola Includes Merit Selection in List of Institutional Reforms

Senator Jeffrey E. Piccola (R. Dauphin and York) has been advocating for Pennsylvania to hold a constitutional convention — the first such convention in forty years. In a commentary piece on the Commonwealth Foundation’s website, Senator Piccola explains why he believes a constitutional convention would be useful:

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Historically, a constitutional convention has not been the appropriate forum to tackle controversial social issues. There are, however, important policies and processes spelled out in the constitution that the legislative, executive, and judicial branches follow which a convention could change. Those reforms could range from changing the size of the General Assembly to term limits, or from instituting merit selection of our judges to setting compensation requirements for public officials.

Although PMC and PMCAction have not taken a position on whether Pennsylvania should have a new constitutional convention, we’re glad to see Merit Selection coming up on lists of necessary reforms for Pennsylvania.

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Aug 19 2008

Merit Selection — A Fair Process that Brings Us Good Judges

Merit Selection is a favorite target of those who worry that a process that removes money from judicial selection and weakens the role of political parties will keep the critics’ preferred candidates from reaching the bench. And once again, the Wall Street Journal criticizes Merit Selection in a thinly veiled call for more politically conservative judges to staff our federal and state courts.

PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach submitted a letter to the editor in response, arguing that the editorial mischaracterizes Merit Selection and ignores how successful it has been at the state level. (We are waiting to see whether the letter will be published before posting the full text.)

Merit Selection is designed to get the most highly qualified, fair and impartial judges on the bench, not to pack the courts with devotees of a particular political or philosophical leaning. While claiming to be supporters of judicial accountability, critics of Merit Selection often are simply concerned that their preferred candidates won’t make it through the process. That doesn’t seem to us to be a good reason to oppose a system that gets judges out of the fundraising business, emphasizes qualifications, skill and experience and results in judiciaries that reflect the diversity of the states from which they are drawn.

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Our friends at Gavel Grab offer their thoughts on the editorial, wisely asking, ” Leaving aside the editorial’s many factual errors. . . the real question is this: what is so wrong with getting community input before nominating new judges?” The answer, of course, is that nothing is wrong with that, as the many successful state Merit Selection systems demonstrate. We hope Pennsylvania soon will join their number and implement Merit Selection for the appellate courts.

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Aug 18 2008

Why One Kansas Voter Prefers Merit Selection

Cristina Janney, the news director of the Newton Kansan, has written a column about the upcoming judicial elections and retention elections. Some Kansas counties use elections and some use Merit Selection to pick their judges. Janney explains why she would choose Merit Selection:

I have lived in counties that have used both processes, and I believe I prefer merit selection with votes to retain. I think the judicial system is the best off when there is the least amount of political pressure exerted on the system. Justice should be about the law, experience and competence not a popularity contest.

We couldn’t have said it better.

Janney’s column is filled with more good advice about how voters can educate themselves about judicial candidates and judges standing for retention. And she sums up simply why voters should care about who becomes a judge:

[T]his is important. These judges hold the reins of our judicial system. They preside of [sic] over criminal cases of the most heinous of criminals, million-dollar lawsuits and hold people’s lives in their hands.

Janney’s words should resonate with voters everywhere. Thoughtful, knowledgeable, responsible and (above all) fair and impartial judges are critical to the functioning of our legal system.

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Choosing appellate judges shouldn’t be a contest of political clout and campaign fundraising. Merit Selection puts the focus back on the ability and qualifications of judicial candidates. We hope that, as they learn more about Merit Selection, the voters of Pennsylvania will agree that it’s a better way to choose our appellate judges.

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