judgesonmerit.org

Gavel Grab reports that the candidates running for the Mississippi Supreme Court and third-party groups supporting them are spending big money.  Citing  the Jackson Clarion-Ledger , Gavel Grab notes that business interests and plaintiffs’ lawyers seem to be filling the coffers of the candidates.

In addition, the same paper earlier reported that “Political action committees are spending more on advertisements for those running for the state Supreme Court than any of those actually seeking the office.”  While the candidates claim not to be involved with these groups or authorizing their activities, allegations about collaboration have surfaced.

Look at what happens when judges have to run for election and raise money to suppor their campaigns. There’s a better way to select Supreme Court justices, a way that gets them out of this mess.  It’s Merit Selection.

The Birmingham News reports that the “relatively tranquil Alabama Supreme Court race turned last week toward more familiar territory of big spending, special-interest politics and attacks on the candidates.” What’s happening in Alabama should come as no surprise to those who watch state court elections.

The candidates are trading accusations about false and misleading polls and advertisments.  The amount of money spent on ads is steadily increasing, and an out-of-state group from Virgina, the same group that got involved in the 2007 Pennsylvania Supreme Court elections, is spending money to advertise for one of the candidates.  Gavel Grab has an interesting report about this ad.

This election is following trends set in other states where judges are elected in partisan contests. Fundraising records are broken almost immediately after they are set, and third parties, including out-of-state groups, are getting involved in the elections.  Does using this system to select appellate court judges make any sense?

The New York Times reported this Saturday that the United States Supreme Court is nearing a decision whether to grant certiorari in Caperton v. Massey.  The West Virginia case, which we have covered before, “turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.”  Gavel Grab and Slate offer good analyses of the questions raised by this case.

If the Supreme Court decides to hear Caperton, it could determine when a judge would have to remove him or herself from a case in which a campaign contributor is a party.  Many people question the impartiality of judges hearing cases involving contributors to their own campaigns.

‘If the public believes that judges can be bought,’ said Keith R. Fisher, a lawyer for the bar association [one of several groups that have urged the Supreme Court to hear the case], ‘that is really poisonous and undermines public confidence in an independent judiciary.’

How much campaign money does it take to give the impression that justice is for sale?  When does the appearance of impropriety become so great that a judge must step aside?  Merit Selection eliminates these questions because it allows judges to focus on the law, not on expensive political campaigns.

A new study by Texans for Public Justice finds that most of the money being contributed to the six candidates currently running for the Texas Supreme Court (three incumbents and three challengers) comes from lawyers and litigants who’ve had cases before the Court in the last three years.  Lawyers and law firms litigating before the Court comprised the biggest group of campaign contributors.

Texas — like Pennsylvania — is one of a handful of states that elects all its judges in partisan elections.  These elections have become increasingly expensive. As the new study demonstrates, the campaigns are funded in very large part by parties doing business before the state Supreme Court.  This only serves to solidify the public perception that money matters and affects judicial decisionmaking.

The study did not analyze the outcomes of the cases at issue, but only the degree to which campaign contributors are involved in Supreme Court litigation.  This focus highlights a major problem with electing judges — that campaign contributions foster a belief that “Justice is for Sale,” and weakens public confidence in the courts.   It doesn’t really matter if campaign contributors are winning more frequently than other litigants; if the public believes they get a benefit, the damage is done.

The problems created by fundraising in judicial elections continue to plague West Virginia.  Gavel Grab has alerted us to a report in The West Virginia Record detailing that law firms involved in a case accepted for review by the Supreme Court are coming in to two of the three candidates running for Supreme Court.

The case involves a $400 million verdict against Dupont for alleged pollution.  The campaign donors are two of the law firms representing the plaintiffs.

Nothing prohibits such donations or directly requires judges to recuse in cases in which donors are involved.  That’s one of the biggest problems with electing judges.

The Hispanic Chamber of Commerce of Central Pennsylvania supports Merit Selection because it “would be more likely to elevate qualified minority candidates to the bench than the current partisan election system,” lawyer and Hispanic Chamber representative Edward Lanza told the Senate Judiciary Committee in his oral and written testimony at the recent hearings on Merit Selection legislation.

The Hispanic Chamber believes that it is very important for the integrity of the judicial system in Pennsylvania that the courts reflect the increasing diversity of the Commonwealth’s population.  A growing Hispanic population is more likely to trust a court system that includes judges from diverse backgrounds and is more representative of the Community as a whole. . . .

This is not to say that diversity should be the only criterion for selection.  Neither should diversity be the main consideration.  The Commission will select persons of demonstrated competence, judgment and integrity to submit to the Governor for consideration, first taking into account the applicants’ qualifications and then considering the goal that each appellate bench should include both men and women, and judges and justices from racially and ethnically diverse backgrounds and who reflect the Commonwealth’s geographic diversity.

Designed to put the most qualified jurists on the bench, Merit Selection provides greater opportunities to candidates that represent Pennsylvania’s diversity.  We would like to thank Ed Lanza and The Hispanic Chamber of Commerce for their support.

Read more about the Senate Judiciary hearing and see the testimony of various supporters here.

The Herald-Dispatch recently editorialized about West Virginia’s judicial election system and the problems inherent in electing judges.  The editorial specifically cited the issue of fundraising and campaign contributions:

The number one issue the five members of the West Virginia Supreme Court of Appeals must deal with is the integrity of the court. That integrity has been battered in recent years. The amount of money spent on Supreme Court races poses perhaps the greatest threat to the high court’s integrity.

The editorial noted that even the three candidates running for the Supreme Court vacancy believe there are problems with the current electoral process.  Without identifying a favored solution, the editorial argues that the current system is broken and change should be considered:

Even people who like the present system must admit that the ever-increasing amount of money being spent on judicial elections is a problem. Money allows an unknown candidate to become known and have a fighting chance in an election, but too much money raises the perception that campaign donations could influence a justice’s decisions, particularly when that justice plans to run for re-election. . . . After the election, a fresh look is needed at what can be done to improve the way justices are selected and in the process improve the court’s integrity.

We hope West Virginians will get a chance to weigh in on whether the current system is working for them and whether they want to find a better way to select judges.

Gavel Grab offers a detailed analysis of “Our Courts and Corporate Citizenship,”a conference held by the Sandra Day O’Connor Project on the State of the Judiciary in Washington, D.C. last week.  Featuring judges, justices and business leaders from throughout the country, the conference focused on the relationship between the functioning of the courts and the business environment.  Many participants expressed concern about the escalating fundraising in state judicial races and the damage it causes to the public’s perception  of courts’ and judges’ independence and impartiality.   Justice O’Connor’s opening remarks sum up these concerns:

The pendulum of judicial bias swings both ways. . . . Once you hang the For Sale sign on the court house door, you can’t predict who the buyer will be. As plaintiff and defendant-friendly groups each race to pour money in to get their judges elected, the only result they’re assured of is that the rule of law will suffer.

This is a major problem with electing judges and a key reason we advocate for implementing a Merit Selection system for Pennsylvania’s appellate courts.

We’ve been following the efforts of Johnson County, KS to maintain its local Merit Selection system in the face of an upcoming referendum to replace the system with partisan elections.  The Shawnee Dispatch offers an analysis of the views of those supporting and opposing the ballot measure.

Tim Kolba of Kansas Judicial Review, the group advocating for the elimination of the Merit Selection system claims that “left-leaning attorneys” dominate the current process.  Greg Musil, working with Johnson Countians for Justice — the group seeking to defeat the change and preserve Merit Selection — says Kolba and Kansas Judicial Review are motivated by a desire to get more conservative judges on the bench.

Gavel Grab is following the situation in Johnson County closely, and we will continue to do so as well.  For now, suffice it to say that we think that the key issues are how to get the most qualified, fair and impartial judges on the bench and how to keep judges out of the fundraising business.  The answer is Merit Selection.

Joseph Russo, currently a Common Please Court judge in Ohio and candidate for the Ohio Supreme Court, is worried about the perceptions created when judicial candidates take large contributions from parties that later appear before them in court.  The Cleveland Plain Dealer reports that Russo has proposed a mandatory recusal process for judges and justices in cases involving campaign donors.

Under Russo’s proposal, a Supreme Court justice would be required to recuse in a case involving an entity that donated more than $10,000 in the aggregate to his or her campaigns during the past seven years.  Lower court judges would be subject to a similar process, though the dollar amounts triggering recusal would be lower.  Russo explained his reasoning in making the proposal:

‘The concern I have is that groups of people giving you money, a law firm or a corporation, and now they want to come before you in court to hear their case. . . .  My plan would immediately wipe out that perception about justices voting with the money.’

Russo’s opponent, incumbent incumbent Justice Maureen O’Connor,  opposes the measure, and notes that although other states have considered similar mandatory recusal programs, none has adopted one.  Read more about the campaign and the candidates on Gavel Grab.

O’Connor’s observation raises an interesting question.  If recusal is not the solution, maybe there’s a better way to deal with the problem of campaign contributions and the perceptions they create.  We think the answer is getting judges out of the fundraising business altogether by adopting a Merit Selection system for the appellate courts.