judgesonmerit.org

Boulder County’s Daily Camera columnist Doug Thorburn recently wrote a column praising local judge James C. Klein. The piece reserves plenty of kind words for the system that put Judge Klein on the bench.

Thorburn summarizes the problems with judicial elections, including campaign contributions that create the appearance of bias and bitter, negative campaigns that sour the reputations of otherwise competent jurists. He then describes how Colorado’s Merit Selection system works to correct these problems, and how it provides Colorado with qualified, impartial judges.

Colorado, Thorburn concludes, “should be grateful for a vetting of judges based upon merit from the outset.” We agree with this assessment, and we hope that we’ll soon be able to say the same thing about Pennsylvania’s appellate judges.

A case in Northampton County points out another side effect that comes from electing judges. Sometimes, the electoral process itself will result in an entire court being unable to preside over a case because of potential conflicts.

The Allentown Morning Call reports that Northhampton County President Judge F. P. Kimberly McFadden issued an order recusing all county judges from presiding over a case involving Thomas E. Severson, a political consultant who has worked on several local judicial campaigns. Judge McFadden also requested that the Administrative Office of Pennsylvania Courts (AOPC) appoint an out-of-county judge to preside over the case.

Such requests are not unheard of. They’re made when, for some reason, all of the judges in a county may have potential conflicts of interest in a particular case. The ethical thing for judges to do in that situation is to allow another judge to take over. But we find it interesting that in this case, it’s the litigant’s involvement in the judicial election process that has created the conflict.

A similar situation arose last year in Philadelphia when President Judge Darnell Jones recused the entire Philadelphia Court of Common Pleas from a case involving a challenge to Congressman Bob Brady’s filings for his mayoral campaign. The reasoning here was that Bob Brady is very involved in local judicial elections and therefore an appearance of conflict could arise in any sitting judge — whether Brady supported that judge’s election or not — presiding.

But what about others involved in the election process — like campaign donors?  Should there be rules requiring recusal when a campaign donor is involved as a lawyer or party?  Currently there are no rules that explicitly require that, but as we posted here, a case has been filed with the United States Supreme Court raising this question as it relates to significant campaign contributors.

One way to solve the problem is to take money and campaigning out of the system of picking judges.  We can do this for the appellate courts by switching to Merit Selection.

A recent editorial in Mobile’s Press-Register discusses judicial salaries, standards of quality and requirements for getting a seat on Alabama’s appellate bench. To ensure that the quality of the judges on the bench consistently matches their relatively high salaries, the paper suggests abandoning judicial elections and switching to Merit Selection.

[T}o improve the quality of the appellate courts... switch to a Missouri-style system of judicial appointment and voter retention. Choosing judges in nasty, lavishly financed partisan elections demeans the courts and discourages well-qualified people from pursuing a position on the appellate bench. If the state adopted the merit selection process included in the Missouri Plan, it's unlikely that judicial pay would outpace judicial quality.

Alabama is gearing up for an expensive state supreme court race this Fall, funded primarily by groups and individuals that spend a lot of time in court. We join with the Press-Register in the hope that the state will abandon big-money judicial elections, and make the switch to Merit Selection.

An article in Wednesday’s St. Petersburg Times describes two judicial races where the campaign rhetoric is getting partisan – and personal – fast. While these races are supposed to be nonpartisan, personal attacks and statements about political leanings are raising eyebrows, as well as questions about how far candidates in these races can go when trying to sour voters’ opinions of their opponents.

When judges have to conduct (or endure) negative campaigns, politics becomes the focus. It discourages otherwise qualified candidates from running if they don’t have the connections and funds to run a strong political campaign. The message is clear. To be a judge, you also have to be a skilled politician.

Merit Selection relieves judicial candidates from the burden of campaigning. It lets judges be judges, by shifting the focus  back to each candidate’s abilities and qualifications. No plan for judicial selection can eliminate politics from the process, but we can prevent it from being a job requirement for a seat on the appellate bench in Pennsylvania.

Critics of Merit Selection like to conjure up visions of a shadowy cabal of lawyers, meeting in a smoke-filled room to decide who has the right political leanings to be a judge. In reality, the people who serve on judicial nominating commissions are usually thoughtful men and women, lawyers and nonlawyers, who view the task of recommending qualified judicial candidates as an important civic duty.

Florida’s Judicial Nominating Commission is preparing this week to interview 49 candidates for two vacancies on that state’s supreme court. In an article about the work involved, members of the commission talk about how much time and effort they invest in the process.

Commission Chair Bob Hackleman calls the job “a grave responsibility,” and stresses the “need to be thorough.” Commission member Arturo Alvarez gives this perspective:

I really believe in the merit-selection process. It’s much like sitting on a jury. We actually say to ourselves, ‘My God, this is an important thing.’ Me, as a trial lawyer, I know the power a single judge can have over things.

We’re glad that the members of the Florida Judicial Nominating Commission take their responsibilities so seriously. We hope their work goes smoothly, and we hope that critics of Merit Selection will think of them before being impugning the motives of men and women serving their states with pride.

During a recent trip to Memphis, Tennessee Governor Phil Bredesen expressed his continued commitment to renewing the “Tennessee Plan” for Merit Selection of the state’s judges. Governor Bredesen acknowledged that the current plan isn’t perfect, but he believes in it, and he’s working to preserve it.

The preservation of the Tennessee Plan is the vastly more important thing to me than any messing around or fooling around with the mechanics of the selection. I’d like to see it opened up. I’d like to see something like some additional selections… but preservation of the Tennessee Plan is a must-do for the state.

The governor also noted that other state officials, including Lt. Gov. Ron Ramsey and Tennessee House Speaker Jimmy Naifeh, support renewal of the Plan.

Memphis attorney Buck Lewis also expressed his opinion that the Tennessee Plan should be renewed. Lewis is the new president of the Tennessee Bar Association, and is a former judicial candidate that the governor had previously refused to nominate. But on the importance of the Tennessee plan, Lewis and Bredesen see eye to eye. “If you care about diversity and quality on our state’s appellate courts, you ought to care about us retaining the Tennessee Plan,” Lewis said.

It’s good to know that these officials are committed to preserving Merit Selection of judges in Tennessee. We wish them the best of luck.

A petition for certiorari has been filed in Caperton v. Massey – the case arising out of the mess of recent West Virginia judicial election campaigns. We’ve written about the situation stemming from the refusal of a justice to recuse in a case involving a significant campaign contributor. The case has made it through the West Virginia courts, and a high-powered legal team led by former Solicitor General Ted Olsen is appealing to the U.S. Supreme Court. The main question presented for the Court’s consideration is whether a judge’s failure to recuse in a case involving a major campaign contributor violates the Due Process Clause of the Fourteenth Amendment.

Several amicus briefs have been filed in support of the petition, including some filed by our national partners, the Brennan Center for Justice, the Committee for Economic Development and the American Bar Association. Gavel Grab has a post about the various briefs here.

This case presents an important opportunity for the high court to set standards for when judges should recuse in cases involving major campaign donors, and we’re eager to see what happens. Of course, we think the whole problem could be avoided by getting judges out of the fundraising business through the adoption of Merit Selection.

Senate Judiciary Chair Stewart Greenleaf has scheduled a public hearing for September 16 to explore the Merit Selection legislation introduced early this year by Senators Jane Earll and Anthony Williams. The hearing will be Sept. 16th at 9:30 a.m. in Hearing Room #1 of the North Office Building in the Capitol Complex in Harrisburg. We will provide updates about who will be testifying and how interested parties can submit written testimony to the committee.

This is an important step in the public dialogue required to amend the constitution to change the way we select appellate judges. The hearing will provide an opportunity for the members of the Senate Judiciary Committee, invited guests and the public to discuss the problems with the current system of electing appellate judges, the need for judicial selection reform and the specific proposal.

We appreciate Senator Greenleaf’s willingness to begin the dialogue and look forward to a productive hearing on September 16.

We’re hearing calls for Merit Selection down in Mississippi. An editorial in the Clarion Ledger cites recent scandals and increasing campaign costs as reasons to consider moving away from electing judges. Lawyers in the state bar association and the Federalist Society are calling for reform, but there will need to be a big public education effort to convince the public: “the biggest hurdle is general Mississippi tradition of wanting to vote on everything and everybody.”

To combat this common argument against Merit Selection, the author argues:

The reality is voters don’t know very much about judicial candidates, or enough. We have a system that allows inordinate influence by special-interest money. Believe me, dear voters, you aren’t really picking judges. The major races are carefully choreographed: who runs, who gets financed. You just pull the levers.

We understand that it’s very difficult to change from an elective system, but this author points out in stark terms why voting for judges doesn’t really make sense.

We’ve written a lot about the problems with judicial elections and the emphasis judicial elections place on fundraising and campaign skills. The American Bar Association Journal features an article this month that focuses on another key attribute for success in judicial elections: having the right name.

The article covers the troubles faced by a well-regarded judge in Los Angeles County with an unusual name. The political consultant who ran a successful campaign against this judge on behalf of a candidate rated not qualified by the local bar association summed it up perfectly:

People couldn’t pronounce that name, they didn’t know what [ethnicity] she was, and they didn’t know if she was a man or a woman. . . . You couldn’t come up with a worse name if you tried. I knew we could win that race.

This article underlines a point we’ve made before: judicial elections are not designed to focus on qualifications to serve on the bench. They’re about finding the most electable folks, based on fundraising ability, campaign skill and popular appeal — including having the “right” name.