Archive for October, 2008

Oct 31 2008

Wall Street Journal Offers Another Misguided Attack

An editorial in yesterday’s Wall Street Journal launches another misguided attack at Merit Selection.  Recycling tired arguments about the influence of plaintiffs’ trial lawyers on nominating commissions, the editorial asserts: “What began as an effort to keep politics out of judicial selection has become a wholesale transfer of power from voters to the legal guild.  Elections have their own problems, but at least they require the legal elite to be accountable to voters. ”

It’s hard to take this complaint seriously as it follows a rundown of the state Supreme Court seats up for election next week that identifies each candidate by political party, whether they lean “left” or “right,” and what interest groups (ie. business or labor or lawyers) support them.

In fact, the editorial actually confirms what we’ve long said is a problem with elections: judges are elected based on factors irrelevant to how they will perform on the bench.  Funding, campaign skill and affiliation with or support by certain interest groups is more important than qualifications, skill and experience.  Our friends over at Gavel Grab hit the nail on the head in their insightful post about the editorial:

Beyond the pedestrian falsehoods, we couldn’t help but appreciate the deeper irony:  over five anxious paragraphs, the Journal lays out attempts by trial lawyers to invest money into justices of their choice to reverse years of elections won by groups seeking to limit lawsuit awards.

We welcome their concern.  If the Journal believes that justices whose campaigns are funded by trial lawyers will be partial to trial lawyers once elected, perhaps they’ll be more inclined to understand the core concern of most Americans about no-holds-barred judicial elections.

It’s the perception that all this money and partisan politicking and special interest involvement create that’s so damaging to our system.  Polls repeatedly show that the public believes that campaign contributions influence behavior in the courtroom.  The Journal’s editorial demonstrates how powerful this belief is.  Merit Selection advocates want to remove this perception and what causes it by implementing a system of judicial selection that puts the emphasis where it should be on skills, qualifications and experience.

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Oct 30 2008

Campaign Money Raises Questions in Alabama

Published by under Judges,News

In a report about the current judicial elections in Alabama, The Press-Register notes:

With millions of dollars coursing into the campaign coffers of candidates for Alabama’s appellate courts, an age-old question has resurfaced: What should judges do to remove doubt about their impartiality?

It’s not just reform groups and the public who are concerned about the influence of money in judicial elections. The report explains that some judicial candidates and bar association leaders also believe that steps should be taken to eliminate the perception — and perhaps the reality — that campaign money can affect judicial decision-making.

Some of these folks are talking about whether recusal should be mandated in cases involving campaign donors.  This isn’t a new issue and it’s not unique to Alabama — we’re still waiting to hear whether the United States Supreme Court will take up the West Virginia case of Caperton v. Massey which poses similar questions.

This is just another example demonstrating why money and selecting appellate judges shouldn’t mix.

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Oct 29 2008

Big Spending in Michigan

Published by under Judges,News,Opinion

The race for the Michigan Supreme Court is heating up with the candidates having raised more than two million dollars already.  But, as a new report from the Michigan Campaign Finance Network explains, the election is costing much more than that: third party spending on television ads for the candidates is nearly two million dollars to date.  That’s about four million dollars so far to determine who’s going to get a job that is supposed to require fairness and impartiality and that the winner must not appear to favor those who helped him or her get there.

The third parties doing the spending: the Michigan Chamber of Commerce and the Michigan Democratic State Central Committee.  Gavel Grab has good descriptions of and links to some of the ads running in this campaign.  Because their ads don’t directly mention voting, these third-party groups don’t have to report their spending or disclose the source of their finances.  Many see this is a growing problem in judicial elections:

‘The peril in this is that an individual or interest group could secretly spend a million dollars to market a candidate – a very important contribution, and then have that justice vote to select its case and rule on its case,’ said Rich Robinson of the Michigan Campaign Finance Network. ‘That has considerable potential for conflict of interests and it certainly creates a troubling appearance.’

Pennsylvania faced similar issues last year when an out-of-state group ran “issue ads” marketing a candidate but not directly asking for votes.  The answer is to get money out of the judicial selection process by using a different way to pick judges that doesn’t rely on fundraising, campaigning and television ads.  We think the solution is Merit Selection for the appellate courts.

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Oct 28 2008

Philadelphia Magazine Examines the Crazy System of Electing Judges

Published by under Judges,Opinion

The November issue of Philadelphia Magazine includes a lengthy feature analyzing how judges get elected in Philadelphia.  Although the story focuses only on the process for electing local judges, it puts in sharp relief some of the major problems with using elections to pick judges: the randomness of the process and the money.

The article opens at the scene of the drawing of lots for ballot position:

It’s impossible to overstate the importance of ballot position when it comes to electing judges in Philadelphia. Nothing confirms our ignorance of judicial candidates as much as this: The first name we come to on the ballot is almost always one that is going to win.

After identifying some judges for reputations as not qualified to serve or for not possessing the requisite “judicial temperament,” the article hits the heart of the matter:

All of which raises the question: How do people like this end up on the bench in the first place? We know the answer, of course: We elect them. But if you’ve ever voted in a judicial election in Philadelphia (or anywhere in Pennsylvania), you also know that in most cases, you’re voting for little more than a name.

So, how do candidates achieve the required name recognition to win an election?  That’s where the campaign money comes in, and the article focuses on how candidates spend their money in Philadelphia judicial elections.  Candidates who want to win must “pony up to the real power brokers in our judicial elections — consultants. Their main job is to tell candidates which ward leaders should get their money.”  When the system works as designed, candidates pay the ward leaders for their get out the vote efforts.  Except, sometimes, according to the article, payments are made and services aren’t delivered as promised.

The author opines that this isn’t the real problem with the system, however:

[T]he bigger problem is the demand that our prospective judges — our judges — dive into a deal-making election process that becomes a test of whether they can close their eyes and hold their noses long enough to resurface with any moral equilibrium.

This is a good point that applies to all judicial elections, which emphasize fundraising and campaigning above skill and experience.  There’s got to be a better way.

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Oct 27 2008

Outside Money Comes into Alabama Election

Published by under Judges,News

Adding to Alabama’s already expensive and nasty Supreme Court election, a Virginia-based organization has begun a series of television advertisements promoting its preferred judicial candidate, spending over $1 million to broadcast ads praising candidate Greg Shaw.  The Press-Register reports that, in response to the organization’s ads, candidate Deborah Bell Paseur’s campaign wants Shaw to demand that the third-party organization either disclose its contributors or stop broadcasting the advertisements.

‘The whole thing we’re interested in is finding out where this money is coming from,’ [Paseur's campaign manager Marion] Steinfels said. ‘Who is funding these ads?’

Factcheck.org takes a closer look at the Alabama race, carefully scrutinizing the role of the third-party organization.  Gavel Grab is also following this development.

Last year, the same Virginia-based organization broadcast similar ads leading up to the most recent Pennsylvania Supreme Court race, urging voters to “thank” one of the candidates.   Ultimately, because the ads never explicitly advocated for the election of a specific candidate, and were considered “issue ads”, the group was able to avoid disclosing its contributors.

Judicial selection and campaign money: a bad mix.

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Oct 24 2008

Texas Needs a Better Way to Select Judges

An opinon piece in the San Antonio Express-News argues that electing judges just doesn’t make sense.  Bruce Davidson writes:

Good judges hate to raise money and act like politicians.

But the Texas judicial selection system forces them to be politicians, and that creates a major perception problem about Texas justice.

Texas, like Pennsylvania, elects all judges in partisan election contests. We’ve written recently about a new study finding that the majority of campaign contributions in the current campaign come from parties and lawyers who have recently litigated in the state Supreme Court.

The real problems with this system are the partisan election of judges who are supposed to be independent umpires and the flow of contributions that also undermines the perception of unbiased fairness.

Davidson also writes of the lack of information about the candidates available for voters seeking to make informed decisions.  His preferred solution is Merit Selection with retention elections: “Texans could dump bad judges, partisan sweeps would be eliminated and special-interest influence would be reduced.”

We agree that Merit Selection solves the problems inherent in using expensive partisan elections to select judges.  We wish them luck in Texas and hope Pennsylvanians will get to weigh in on whether we should change how we pick our appellate court judges.

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Oct 22 2008

Tracking the Money in Alabama

Published by under Judges,News

The Birmingham News reported recently on the role of political action committees (PACs) in channeling contributions from various sources into the Alabama Supreme Court race.  PACs are set up to let various parties and interest groups pool their money.  The PAC appears as a campaign contributor, but the actual contributors’ names do not.

The system also makes it difficult for voters to figure out who financially backs candidates, David Lanoue [chairman of the political science department at the University of Alabama] said. “That is meaningful information,” he said. “Donors have agendas.”

“Alabama needs to peel back the curtain so the average voter can know who is giving the money and which agenda it is likely to represent,” said Charlie Hall, of Justice At Stake.  In a recent post, Gavel Grab provides a closer look at funding for the Alabama Supreme Court race.

As we have previously noted, the Alabama Supreme Court race is becoming more expensive and increasingly negative.  The influence of large campaign contributions, through PACs or from direct donors, can be eliminated by replacing judicial elections with Merit Selection, a system that focuses on one’s qualifications as a judge, not on how much money one can raise.

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Oct 21 2008

What’s Going on in Nevada?

Published by under Judges,News

The Las Vegas Sun’s report on the Nevada Supreme Court elections discloses disturbing allegations about whether campaign contributions might have been offered in exchange for a promise to recuse from the donor’s cases.  The candidate has alleged that a political consultant close to another lawyer — and long-time “enemy” of the candidate — approached the candidate with the promise of large campaign donations in exchange for the agreement to recuse in the “enemy’s” cases.  The FBI was alerted, but as yet, no charges have been filed.

The news report bemoans the state of judicial elections in Nevada:

But even if no crime has been committed — and lawyers disagree on whether one was — the notion that such a conversation took place will confirm the worst cynicism about how campaigns and the judiciary work in our little backwater in the desert. That L.A. Times series [from 2006], headlined “A stacked judicial deck,” detailed how judges apparently were influenced by friendships and contributions — it was a manifesto for an appointive judicial selection process.

The public has grown increasingly concerned that campaign contributors get favored treatment in the courtroom.  This story raises a new question — could contributors use their money not to curry favor but to get unfavorable judges out of the courtroom?

Conspiracy theories and ugly tactics are de rigueur for October in even-numbered years. But what makes this different is the unmasking (again) of a system in which lawyers spend lots of money trying to get a favorable majority on the high court, where justices can help determine where millions of dollars in settlements will go or how much money deep pockets will save.

Whether or not the allegations in this story are proven to be true, the damage to the court system and the judiciary has been done.  This story reinforces the public perception that money matters in the courtroom, and it demonstrates once again why we need to get judges out of the fundraising business.

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Oct 20 2008

Tales from the Minnesota Campaign Trail

Published by under Judges,News

It’s not a judicial election year in Pennsylvania, but many other states are electing judges this fall.  Two stories from Minnesota illustrate some of the problems inherent in electing judges.

We’ve long pointed out that judicial elections often turn on random factors like ballot position, name recognition and fundraising ability rather than demonstrated skill, qualifications and experience.  A long-serving local judge in Minnesota is facing his first challenger in years.  The incumbent’s campaign co-chair reports that:

[The challenger] has done almost nothing since filing for the race. He has not established a campaign committee nor has he responded to requests for information from the Minnesota State Bar Association, Minnesota Lawyer or the StarTribune. As far as can be determined, Mr. Link is a real estate lawyer with no significant courtroom experience. It has been reported that he chose to run against Judge Bush solely because of the incumbent judge’s “politically unpopular” last name.

In addition to the name recognition game, judicial campaigns continue to grow more and more like other campaigns for public office.  Legal Blog Watch reports that two candidates for the Minnesota Supreme Court have taken their campaigns to Facebook. Mark Cohen of Minnesota Lawyer Blog has commented, “While campaigns run in the virtual world are all well and good, I would like to see a real-world debate between [the candidates].”

We understand that when a state elects its judges, candidates have to be creative in raising funds and running campaigns.  But we think these types of campaigns don’t do much to ensure that the most qualified, skilled and experienced candidates reach the bench.

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Oct 17 2008

Standing Up for Merit Selection in Wisconsin

Tim Kiefer, an unsuccessful candidate for the Wisconsin General Assembly, has published an op-ed in the Capital Times explaining why he supports reforming Wisconsin’s judicial selection process and implementing a Merit Selection system for the state Supreme Court.  Kiefer sums up his understanding of Merit Selection: “The basic philosophy is this: Select justices based on merit, and then hold the justices accountable in elections based on performance.”

Kiefer goes on to set the record straight about how Merit Selection works and what it accomplishes.  He  notes that the process focuses on getting qualified jurists on the bench:  “[S]afeguards would ensure the integrity of the process and protect it from being hijacked by an unqualified nominee with political connections.”

Under his proposal, the Merit Selection system would be used only for the Supreme Court, and it includes a retention component, so “there would still be regular Supreme Court elections, and Supreme Court justices would still be held accountable by all the voters of Wisconsin.” He also explains the role nonlawyers will play on the nominating commission, further cementing public involvement in the judicial selection process.

Kiefer’s piece concludes with an appeal that Wisconsin join the other states who have found that Merit Selection is a better way to select high court judges.  This is a must read piece for those who support judicial selection reform, and we hope Pennsylvania will also join those other states and implement a Merit Selection system for the appellate courts.

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