judgesonmerit.org

Lots of folks in West Virginia are talking about changing the way judges are selected. This is no surprise, after expensive, divisive elections and an electoral history that has brought a tremendously important case about campaign contributions to the United States Supreme Court.  Here’s what they’re talking about.

Lincoln Walks at Midnight reports that Governor Manchin had asked the West Virginia Judicial Association to consider changing to a nonpartisan election system. Although the Executive Committee brought the issue to the membership, the body rejected the proposal.

Then, a House-Senate Committee took testimony over the weekend about how to improve the selection process.  The Charleston Gazette reports that Senator John Yoder urged the adoption of a Merit Selection system:

“Nobody has ever argued that merit selection takes politics out of the selection of judges,” Yoder told an interim committee studying alternatives to partisan election of judges.

“What it does take out is the money – the appearance that justice is for sale,” he said.

Yoder said merit selection removes the perception of judicial bias, based on which lawyers and special interests contribute to their campaigns.

“There’s a perception you can tell the outcome of a case by who the attorneys are that have contributed to the judge,” he said.

The money problem was a shared concern, even of those who urged different reforms.  The point is, the money problem in judicial elections is getting worse.  Merit Selection offers the best solution by taking judges out of the fundraising business.

An editorial in the Philadelphia Inquirer cites the example of Traffic Court Judge Willie Singletary as evidence of the need for Merit Selection:

Voters should have headed off this controversy by rejecting Singletary’s candidacy last year. In addition to the uproar over his plea for donations, Singletary – vying for Traffic Court – had run up $11,000 in traffic tickets and had his driver’s license suspended until 2011. . . .

By luck of the draw, Singletary secured the top ballot position last year, giving him an edge with uninformed voters. Indeed, his victory illustrates a drawback in electing judges as opposed to merit-based appointment. Voters often make their selection based upon ballot position, gender, ethnicity or name recognition – rather than qualifications.

Although we are urging reform only of the way we select our appellate court judges (which would not affect how local court judges, including Traffic Court judges are selected), this assessment of the way elections work hits the nail on the head.

Qualifications, skill, experience and temperament — the ability to be fair and reasoned — should be the factors that govern whether someone reaches the appellate bench.  Merit Selection emphasizes these factors.  But elections emphasize fundraising success, campaign prowess and random factors like ballot position.  These decisions are too important to be governed by factors irrelevant to the actual job of judging.

The Pennsylvania Law Weekly has published a commentary piece (subscription required) by PMC and PMCAction called “Let the People Decide.”  We argue that it’s time for Pennsylvanians to be given the opportunity to vote on whether we should change the way we select appellate judges.

The big question, in our view, is why only we are willing to give the people the power to make this decision:

We trust the people of Pennsylvania to make that decision. We recognize that reasonable people disagree about how best to select appellate judges. What we cannot understand is why those who defend the judicial election system on the grounds of the right to the franchise refuse to give the people of Pennsylvania the opportunity to vote on the question. How can they claim to be defending the franchise while at the same time distrusting the voters to make this important decision?

So often, critics of Merit Selection base their support for elections on the right of the franchise.  Why, then, won’t they consider allowing the people to exercise the franchise on this critical question of how we select appellate judges?

We want the people of Pennsylvania to vote on whether or not to change the judicial selection process. We’re not afraid to hear their answer. We wonder why “defenders of the franchise” are afraid to let the people vote.

A judicial discipline case in Pennsylvania is again demonstrating the problem inherent in fundraising for judicial election campaigns.  As the Philadephia Inquirer reports, Philadelphia Traffic Court Judge Willie Singletary has been found guilty by the Court of Judicial Discipline of four counts of judicial misconduct stemming from his actions while campaigning for the bench.

During a 2007 ceremony called the “Blessing of the Bikes,” Singletary solicited donations for his judicial campaign.  This activity, and the specific words he used, were found to violate several provisions of the rules of judicial conduct, including the prohibition against direct solicitation and the prohibition against making promises of particular conduct when on the bench.

The dollar amounts at issue here were low compared to races for the state Supreme Court.  Singletary had been making requests for $20 donations, and he only raised $285 during the event in question.  But that doesn’t matter, because he implied that the donations would result in favorable treatment for the donors once he reached the bench.  As the Legal Intelligencer reports (subscription required):

During his donation solicitation, Singletary asked the bikers, according to court papers: “‘Now you all want me to get there, you’re all going to need my hook-up, right?’”. . . .

The court. . .  concluded that: “No one, hearing this, could fail to understand that respondent was promising that anyone who gave him money would get favorable consideration from him if he was elected judge. This conduct is the pure antithesis of the concept of ‘judge.’”

We’ve reported before that there is a growing public perception that campaign contributions affect decision-making in the courtroom.  Incidents like this only serve to strengthen that perception and further undermine confidence in the impartiality of the courts.

A commentary piece in the Charlotte Observer calls for a change in the way North Carolina selects judges.  Currently, North Carolina uses nonpartisan elections to select judges, although many first reach the bench through gubernatorial appointment and then run for reelection.  The author notes:

Many lawyers who would be highly desirable candidates for judgeships are understandably unwilling to put their careers and reputations at risk by running for the bench under our present system. The public is the ultimate loser. We lose our expectation that those who mete out justice will be chosen from among the best of the best.

The solution proposed is a Merit Selection system, whereby “nonpartisan panel[s] of experienced, respected lawyers and non-lawyer citizens[would] examine the qualifications of those who wish to be considered for a. . . judgeship and . . . certify to the governor those who appear professionally and temperamentally suited to become a judge.” The Governor would be required to appoint from those lists.  There would be regular performance evaluations, the results of which would be publicized, and each judge would stand before the public in uncontested retention elections.

This makes sense to us, and is similar, though not identical to, the proposals we have supported to change the way Pennyslvania’s appellate judges are selected.  As the author notes: “For such change to succeed, respected civic leaders from outside the legal profession must be willing to join with lawyers in insisting that our legislature address this problem.”  We hope that will happen here, and we wish them luck in North Carolina.

Last week, we wrote about the amount of money spent during the recent judicial election season on television ads, both by the candidates and by third parties.  Now, FactCheck.org breaks down the elections by focusing on some of the most controversial ads of the season:

Another election, another set of bare-fisted battles for state Supreme Court seats.  Think the presidential campaign ads were uncivil and misleading?  Well. . . they were.  But so were those put on the air by judicial candidates and their backers, who no longer blink at spending in the millions of dollars.

FactCheck.org looks at ads from the Supreme Court races in Missiissippi and Michigan, analyzing the claims made in the ads and calling out the misstatements and questionable claims.

Should millions of dollars and misleading ads be the hallmarks of judicial selection or is there a better way to choose appellate judges?

The Latino Journal offers an interesting analysis of the recent judicial elections in Texas, looking at the relationship between candidates’ “ethnic sounding” names and their performance at the ballot box:

Like the four other Democrats running for statewide judicial offices, [Linda Reyna] Yañez faced serious obstacles: a lack of funding, voter indifference, and the fact that no Democrat has held a statewide office since 1994. But Yañez—along with Court of Criminal Appeals candidate J.R. Molina—faced an additional hurdle: ethnic bias. Some voters, with little else to go on in these low-profile races, appear to have cast a vote against Latino surnames.

The Latino Journal reports that The Texas Observer and Democratic political demographer Leland Beatty studied the election results and used regression analysis to conclude that race accounted for the vote discrepancies between the white and Latino candidates. The Latino Journal offers more evidence of the problem:

A similar bias against ethnic or funny-sounding names may have cost four Harris County judicial candidates, the only Democrats to lose there: Mekisha Murray, Ashish Mahendru, Andres Pereira and Goodwille Pierre. Murray, who is white, says she is frequently assumed to be black. Strangers shouldn’t make that mistake any more; she is changing her first name to “Jane,” mainly to help draw clients to her law practice, she told the Houston Chronicle. Yañez said she has no intention of changing her name. But, she noted, “We’ve got a long way to go in this state.”

As we’ve written here and here, this is not a new phenomenon — names take on much greater importance in judicial elections where voters have little relevant information to guide their decisions.