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Archive for November, 2008

Nov 26 2008

Looking for a Better Way in Wisconsin

An editorial in the Badger Herald expresses concern about the upcoming judicial elections in Wisconsin and argues for a better way to pick judges:

[O]ur next state Supreme Court election will indeed follow directly in the footsteps of the previous two, which gained national attention for their corrosive effect on the stature of our judicial system. Once again, the voters of Wisconsin will decide the composition of our state’s highest court based on partisanship and politics, rather than qualifications and merits.

The editorial goes on to discuss the reason why Supreme Court justices should be selected in a different way than members of the legislature:

[It] comes down to the fundamental purpose they serve in a democratic government. While the Legislature is intended to act as a hired hand for the majority, the state Supreme Court serves only to interpret and enforce the respective laws of the state as well as the state and federal constitutions, regardless of what popular opinion thinks about it. In electing justices, we risk convoluting these distinct roles and in so doing, opening the door to what critics of democracy said would cause it to fail and friends feared it would produce — a tyranny of the majority.

The author criticizes the focus of judicial elections on issues that have little relevance to a Supreme Court justice’s actual judicial work as well as the increasingly expensive nature of the elections and the growing participation of outside groups in the process.

The editorial concludes with a call for change and identifies Merit Selection as the best solution: “It is, quite plainly, our state’s best option, and the only viable way to ensure the integrity of our state’s highest court — a goal worthy of top priority.”

We agree: ensuring that we use the best possible process to select our appellate judges should be a top priority of our leaders and the public. We hope it soon will be in Pennsylvania.

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Nov 25 2008

2008 Election Wrap Up — The Television Story

Published by under Judges,News

The Brennan Center for Justice has released its analysis of television advertising expenditures for the 2008 judicial election cycle, and the numbers are staggering:

Candidates, interest groups, and political parties combined to spend $19,861,269 on television advertisements in state Supreme Court elections nationwide this year. . . . That figure is up 24 percent from 2006, when they spent barely more than $16 million.

Big spenders this year included political parties, which really ramped up their spending from past election cycles: “Democratic and Republican state and local committees combined to spend $2,985,941 on television advertising, compared with only $644,989 in 2006.”

These are trends Pennsylvanians should be aware of as we enter our own judicial election season.  In the past, Pennsylvania has followed national trends of campaign spending, often setting new state records for fundraising and spending.  So, we can expect to see even more television ads come campaign season.

Why should we be concerned about all the money raised and spent for judicial election campaigns?

“The perception of judges as impartial umpires suffers, in particular, when outsized contributions and expenditures to judicial candidates are made by the very parties who then appear before those same candidates, once they are seated on the bench,” said James Sample, counsel at the Brennan Center.

Get ready, Pennsylvania — judicial election season is coming.

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Nov 24 2008

What Do Campaign Contributors Think Their Money Buys?

Published by under Judges

American Courthouse has tipped us off to a story on Texas Watchdog about a big donor to democratic judicial candidates in Texas — attorney Mikal Watts — who has an interesting view about the effect of his campaign contributions.  A letter Watts drafted to opposing counsel in a pending case argues that the parties should settle because:

[Watts] would prevail in an appeal because his law firm helped finance the campaigns of judges on the state’s 13th Court of Appeals in Corpus Christi. . . . “This court is comprised of six justices, all of whom are good Democrats,” Watts wrote in the letter. “The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm’s heavy support, and is a man who believes in the sanctity of jury verdicts.”

When called upon to explain the letter, Watts said he meant to convey that

the Texas Supreme Court wouldn’t hear the case if he won it on the appellate level. Why does that matter?  Watts explained that the lawyers he takes on typically will boast in their own right, saying, “It doesn’t matter what a jury is going to do because we’ve got nine angry Republicans on the Texas Supreme Court who will take away whatever a jury does.”

Texas Watchdog sums it up like this: “In other words, Watts seems to be saying that if he was bragging about rigging the system, it was only to give the other guys a taste of their own medicine.”

We already know that the public believes that campaign contributions affect decisions in the courtroom.  This incident demonstrates that the belief is shared by at least some of those who contribute to judicial campaigns.  How widespread is that belief? It’s hard to know, but what else explains the continuing escalation in campaign war chests?

We think the right way to solve this problem is to get money out of the process of choosing judges.

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Nov 21 2008

Praise for Greene County, Missouri

As we reported last week, voters in Greene County, Missouri voted this year to switch from electing their local judges to a Merit Selection system.  Thomas M. Burke, President of the Missouri Bar, analyzes the decision in an editorial in the News-Leader:

Why switch now? While a number of reasons were presented to voters, the most compelling stem from the campaigns that judicial candidates must run to gain name recognition. Greene County has a population of about 260,000 and is one of Missouri’s fastest growing counties. Partisan elections of judges were becoming more expensive to run. In a recent Republican primary about $200,000 was raised by candidates and their supporters.

Lawyers who regularly appear in front of these judges are faced with a no-win situation, frequently being asked to donate to a judge’s campaign. Having judges, businesses and other groups donate to the election of a judge who may decide your case creates the appearance of impropriety and raises suspicions of influence on judicial decisions.

Burke’s piece offers a clear assessment of the reasons the campaign for Merit Selection was successful in Greene County.  He concisely explains that this isn’t a philosophical or theoretical issue, but a practical question based on the facts of what judicial elections have become:

Greene County citizens are to be commended — not because their judges will be selected under the nonpartisan court plan, but for recognizing the potential danger to the integrity of the courts in their growing community.

This approach makes sense.  Let the public take a good look at judicial elections and let the voters decide whether it still makes sense to choose judges this way.

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Nov 19 2008

What They’re Saying in West Virginia

Published by under Judges,News,Opinion

The fact that the United States Supreme Court has decided to hear Caperton v. Massey — the West Virginia case involving campaign contributors and recusal of judges — is of course big news to lawyers and judges.  But it’s also important to members of the public who come to the courts to settle disputes.  Here’s what Hugh Caperton, plaintiff in the case, told The Charleston Gazette about the issue of campaign contributions:

“In this country, money has begun to pervade and permeate every election that’s held. And I agree that it’s the right of each citizen to support their candidate. But you can’t have Supreme Court seats being propped up by millions of dollars from one individual or group,” he said. “It makes the appearance of impropriety so great that normal citizens like myself lose faith in the judicial system.”

Our justice system is based on the public’s trust and confidence that the judges will follow the law and apply it to the facts presented.  When people worry that campaign contributions might influence a judge’s decisions, that confidence is undermined.  We can’t afford that.

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Nov 18 2008

Finding a Place for the Parties in “Non-Partisan” Elections

Published by under Judges,News

Wisconsin uses nonpartisan elections to select its judges. That means candidates cannot seek the backing of a political party or identify themselves as a member of a political party.  Unlike Pennsylvania, the ballots do not reflect a candidate’s political party.  According to the Wisconsin State Journal, however, “partisans seeking to elect their chosen candidates to the seven-member court have found a loophole big enough to drive a campaign bus through, as recent Supreme Court races demonstrate.”  This loophole is campaign expenditures on behalf of the favored candidate.

In recent elections, political parties, from inside and outside the state, have been spending money to assist their favored candidates in Wisconsin.  As Charlie Hall from Justice at Stake explained,

“Even though it (Gableman-Butler race) was technically a nonpartisan race, there was nothing to distinguish Wisconsin from some of the nastiest partisan races in 2008. . . . Wisconsin now has essentially partisan elections with this (nonpartisan) fig leaf attached.”

Now, there is a lawsuit pending against the Wisconsin Judicial Commission filed by a judicial candidate who claims the prohibition against joining political parties and announcing one’s party violates the candidate’s constitutional rights of free speech and association.  This case follows a line of cases in which restrictions on candidate’s ability to talk about their opinions, engage in partisan activities and engage in certain fundraising activities have been challenged.

In essence, these cases can be summed up as holding that judicial elections should be just like other elections, without all the special rules and restrictions.  But judges are different from other public officials and they owe their loyalty not to special constituencies, supporters or funders, but only to the law.  Which really leads us back to the same question we always ask: why are we electing judges in the first place?

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Nov 16 2008

Supreme Court Will Hear Caperton v. Massey

Published by under Judges,News

During its Friday conference, the United States Supreme Court voted to grant certiorari in Caperton v. Massey, the case from West Virginia that asks whether judges should be required to recuse in cases involving significant contributors to their election campaigns.  This case will be watched closely by judges in election states and by all those concerned about the escalating influence of money in judicial selection.  As Gavel Grab reminds us, “three in four Americans believe that campaign contributions can influence a judge’s decisions in court.”

The issues in this case touch a key problem with judicial elections — the role of money in campaigns and whether and how such contributions affect decisions in the courtroom.  The outcome will be interesting not just for any rules it might set down but for how it may change the face of judicial elections.  If new recusal requirements are imposed, will it dramatically change the campaign contribution game? If no requirements are set and recusal is left to the discretion of the individual judge, will even more money start flowing in to judicial candidates?  And what will this do to the public perception of how the courts work?

We will continue to post about this case as the briefs are filed and arguments are held, but we note that the whole issue of recusal in cases involving campaign contributors would be eliminated if we chose our judges a different way.

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Nov 14 2008

Asking Important Questions in Minnesota

Published by under Judges,Merit Selection

A column in the Minnesota Daily offers an assessment of the recent elections and challenges readers to think about whether changing from electing judges to a Merit Selection system makes sense. The author notes that despite the large number of ballots cast in Minnesota, many people did not vote in the judicial elections: “Essentially, more than three quarters of a million people went out to vote and didn’t make a decision on the judges who will be interpreting this state’s laws for the next six years.”

The author goes on to explain the proposal for Merit Selection and the reasons proponents believe reform is necessary.  He discusses the issues of campaign  money, independence and nasty campaign tactics.  He also cites those who favor maintaining the judicial election system.

The column closes with a question for the reader:

So what about you? Were you among the 800-odd thousand who voted last week and chose to forego your vote on judicial candidates? Are we better off just leaving this judge stuff to the experts in an attempt to keep money and politics from ruining the judiciary? Or is it more important that each person have a potential voice in the selection of our judges?

We disagree with parts of the premise of this question: we believe citizens will continue to be involved in a Merit Selection system, including having a citizen-based commission, not a panel of “experts,” to screen candidate.  But, we too, would like to know what the public thinks about how we select our appellate judges.  We hope that Pennsylvanians will get a chance to weigh in on this issue in the near future.

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Nov 13 2008

A Call for Supreme Court to Weigh in On Campaign Contributions and Recusal

Published by under Judges,News,Opinion

An editorial in today’s New York Times argues that the United States Supreme Court should take the case of Caperton v. Massey — the West Virginia case that asks whether judges should be required to recuse in cases involving significant campaign contributors. We’ve written about the case here and here. The Times argues that this case “offers the United States Supreme Court a chance to help rescue the fairness of state courts from the sea of special-interest money.”

This case has been on the Court’s agenda to consider during four meetings already this term. No decision on whether to take the case has been announced yet, and the case is again listed as an item on tomorrow’s meeting agenda. The Times urges the Court to take the case:

Judicial neutrality and the appearance of neutrality are basic to due process. The justices would do a great deal to protect essential fairness by making clear that outsize campaign expenditures trigger a duty of recusal on the part of the beneficiaries. Surely there must be the requisite four votes on the Supreme Court for taking the case.

We agree that this case presents very important issues and are waiting to see whether the Court will weigh in. We will post any updates following the Court’s meeting.

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Nov 12 2008

More Talk about Reform in Texas

The Star-Telegram offers an interesting editorial arguing that last week’s judicial elections demonstrate again why judicial selection reform is needed:  “after the latest round of high-dollar, highly polarized judicial elections, it could be time to be seriously talking again about alternatives to the expensive partisan contests that have been our norm for far too long.”

The editorial goes on to evaluate briefly the different types of selection systems in use across the country.  Here is the assessment of partisan judicial elections — the current system in Texas and Pennsylvania:

Partisan elections provide direct accountability and give voters at least one criterion for evaluating candidates: party affiliation. But judges are supposed to be impartial, not partisan; races are funded largely by those who have a stake in court cases or want to sway the law, and voters often know so little about the candidates that judges can get swept into or out of office based only on party affiliation.

The editorial then comes down in favor of gubernatorial appointments followed by retention elections:

Appointment-retention would avoid the unseemly spectacle of judges raising campaign money, reducing the appearance of special-interest influence. The politics might not be eliminated but would be reduced if candidates were recommended by a bipartisan panel. Retention elections still might result in judges being ousted for unpopular rulings, but public education about the proper role of the judiciary would be needed to counter that type of improper pressure.

Although our favored system looks a little different and would include evalution by a nominating commission, nomination by the governor, confirmation by the Senate and then periodic retention elections, we appreciate the Star-Telegram’s analysis.  We hope that trends in judicial elections across the country will motivate the public to take a close look at how we pick our judges.

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