Archive for January, 2009

Jan 30 2009

Sandra Day O’Connor: Merit Selection is the Way

Speaking at the Economic Club of Phoenix, retired United States Suprem Method To Back Ur Ex Wife e Court Justice Sandra Day O’Connor made clear that electing judges does not work and that Merit Selection is the way to go.  As Knowledge@W.P.Carey reports, Justice O’Connor offered this assessment of the recusal question presented in Caperton v. Massey (the United States Supreme Court case asking whether judges must recuse when significant campaign contributors appear before them):

What surprises O’Connor about the case, she said, is that the state allowed such bias into the courtroom in the first place. The argument shouldn’t be about whether a judge should be forced to recuse himself from cases with litigants who financed his election campaign. Instead, O’Connor said, it should center on whether judges should be elected at all.

“[I]t strikes me as a sad state of affairs when a case like this becomes a question of constitutionality when it’s clearly bad policy for the state to allow that environment to exist in the first place,” she said.

Justice O’Connor believes that electing judges undermines the independence of the judiciary, especially because of the role of money in the campaigns and the identity of the donors:

“The basic precept of equal justice under the law requires that neither side of the dispute has an unfair advantage,” Justice O’Connor said. “I think you might be concerned if you were in court litigating some issue in front of a judge who had been given a bunch of money by your opponent.”

Justice O’Connor also expressed her view on the singe most important step to be taken to increase judicial independence:

“If I could do one thing to protect judicial independence in this country,” O’Connor said, “it would be to convince those states that still elect their judges to adopt a merit selection system and — short of that — at least do something to remove the vast sums of money being collected by judicial candidates, usually from litigants who appear before them in the courtroom.”

We hope Pennsylvania will soon heed Justice O’Connor’s words.

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Jan 28 2009

Merit Selection is Right for Wisconsin

An editorial in the Wisconsin State Journal lauds Merit Selection as the solution to the state’s broken electoral system:

The State Journal editorial board has strongly favored replacing Wisconsin’s disgraceful high court election system with merit selection. Recent state Supreme Court elections have been so soiled by outlandish TV ads and subsequent ethics investigations that trust in the court is falling. So is the quality of election winners.

The editorial compares a recent poll of voters in Washington with last year’s poll of Wisconsin voters.  The editorial argues that the Wisconsin poll, conducted by the Federalist Society, “completely misinterpreted [the] results” and improperly omitted any reference to Merit Selection as an alternative judicial selection method.  The Wisconsin State Journal concludes:

[v ]oters may well support a better system in which a civic-minded panel analyzes and picks a short list of the most experienced and impartial high court candidates in the state. And then the governor or some other appointing authority chooses from the list. . . . The recent poll in the state of Washington suggests public support for such a system could be quite strong in Wisconsin. The Badger State has long emphasized good government — something merit selection would foster.

We think Pennsylvanians are likely to support such a system as well.  We hope the people of Pennsylvania and Wisconsin will get the opportunity to make that decision for themselves.

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Jan 26 2009

Times-Tribune Calls for Merit Selection

In an editorial about the upcoming judicial elections in Pennsylvania, the Times-Tribune in Scranton points to the role of money in judicial campaigns as a major reason to change the way we select appellate judges:

In order for courts to be effective, citizens must believe that judges truly are independent. Funding appellate campaigns through private contributions, from parties with inherent interests in litigation, works against establishing and sustaining confidence. That is one of the reasons that Pennsylvania should switch to a system of merit selection appointments for appellate judges.

The editorial identifies Caperton v. Massey — the West Virginia case involving campaign contributions and the issue of when judges should recuse — as a “cautionary tale.”  “The West Virginia case could well be extreme. But it illustrates the danger in allowing litigants to fund judicial campaigns. The best way to avoid it is to switch to appointments.”

We agree that change is needed.  We hope the people of Pennsylvania will have the opportunity to decide whether or not to change the way we select appellate judges.

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Jan 23 2009

“Merit is Better than Mudslinging”

Published by under Judges,Opinion

An editorial in the Wisconsin State Journal argues that the state’s election system is not the best way to pick judges. In fact, the editorial calls the judicial election system “nasty and broken.”

Anticipating another bitter election fight and misleading advertisements based on one candidate’s past employment as a public defender, the editorial predicts a replay of the last election’s nasty campaign ads:

To her credit, Chief Justice Shirley Abrahamson has pledged not to exploit [opposing candidate Randy] Koschnick’s work as a public defender, which she called noble, according to the Associated Press this week. Koschnick is challenging Abrahamson for a 10-year term.

But shadowy special interest groups aren’t likely to follow Abrahamson’s example. Liberal groups mad about the ads that smeared Justice Louis Butler for his work as a public defender last year can now turn the tables by attacking Koschnick, a self-described conservative, for the same supposed offense.

This raises the familiar concerns about third-party spending to influence judicial elections and the increasingly negative tone of such campaigns.  These are serious problems that contribute to decreasing confidence in the impartiality and independence of the courts:

The personal attacks and gutter politics are a disgraceful way for Wisconsin to pick its top court. The quality and independence of the state’s Supreme Court is slipping along with public trust in its decisions.

Selecting justices based on merit — rather than mudslinging — is the answer.

Well put.

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Jan 22 2009

Ohio Changes Rule on Announcing Political Affiliation

Published by under Judges,News

Just last month, we reported that the Ohio Supreme Court amended the rules governing judicial conduct to permit judicial candidates to announce their political affiliations to the voters. Well, the Court has now reversed course and reinstated the rule barring judicial candidates from announcing their political affiliation after the primary election.

According to the Cleveland Plain Dealer,  although the initial rule change followed public comment and was publicy announced, this time, the Court made secretly and did not publicize the reinstatement of the prohibition for nearly a week:  “Two weeks after passing a rule that would allow judicial candidates to align themselves with political parties for general elections, the Ohio Supreme Court without explanation or public notice has reversed its decision.”

We will keep our eyes open for more information about what led to the Court’s decision to reinstate the old rule.

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Jan 21 2009

Washington State Voters Think Merit Selection Sounds Good

Washington State University is reporting that its recent survey on judicial selection (conducted with the American Judicature Society) reveals that voters are dissatisified with the current electoral system and favor implementing a Merit Selection system.  The two elements that were most appealing about Merit Selection were the use of a nominating commission and the inclusion of regular retention elections.

Survey respondents valued the idea of a nonpartisan nominating commission composed of lawyers and nonlawyers.  They believed the commission would focus judicial selection on qualifications and also would limit the Governor’s discretion in making judicial appointments.

Central to the survey’s findings was the respondents’ beliefs that a Merit Selection system with regular retention elections would actually provide more opportunity for voter input in judicial selection.  Voters felt that having every judge stand for retention at regular intervals would increase accountability and give voters an important chance to weigh in on a judge’s performance.

The researchers observe that:

It is clear that in a head-to-head choice, after having considered in some detail the major characteristics of both the current nonpartisan election system and the hypothetical commission-based system, the registered voters surveyed in Washington during the 2008 election season clearly prefer the commission system.

We hope voters in Washington will have an opportunity to decide whether to implement a new way to choose their judges.

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Jan 19 2009

Talking about Merit Selection in Indiana

Advance Indiana tips us off to an effort to expand Indiana’s Merit Selection system.  Indiana’s appellate judges are chosen by Merit Selection, but the county judges are selected in a variety of ways.  There is a move to make the Merit Selection system uniform throughout the state, for all judges.

According to the report, the Judicial Conference of Indiana has written a report advocating the adoption of Merit Selection and is waiting for the Supreme Court’s approval.  Marion County Superior Judge Mark Stoner, co-chair of the Judicial Conference’s strategic planning committee explained why he supports the change:

“[The current system] results in lawyers who have to be already wealthy to run, and the appearance about all these judges raising that much from lawyers,” he said. “We simply don’t want a system where a litigant feels they’ve won or lost because their lawyer gave or didn’t give as much as the other side.”

Although we are advocating Merit Selection only for the appellate courts in Pennsylvania, we understand the concern in Indiana that the problems of money and politics infect even local court races.  Advance Indiana concludes by noting:

Of all the government reform measures the legislature might take up this year, I can think of none more important than merit selection. I hope the legislature ignores the pleadings of self-serving political leaders in both parties and pulls the plug on an outdated and unfair political system for choosing judges. As the Indiana Lawyer warns, “Nothing less than the credibility of our judiciary is at stake.”

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Jan 16 2009

Praise for Merit Selection Nominating Commissions

An editorial in the St. Louis Dispatch praises the work of judicial nominating commissions in Missouri and recommends that newly appointed commissioners — especially those who actively oppose Merit Selection — seek the advice of long-serving commissioners:

Take Stephen F. Doss, for example. He’s a Republican businessman who is serving for the second time on the selection commission for the St. Louis Circuit Court. . . .

Mr. Doss says he is a true believer in direct democracy, but he has come to believe that the Missouri Plan’s merit selection process works better in choosing judges.

He considers the process to be genuinely non-partisan. He notes that many judges appointed to the circuit court bench by the governor of one party later have been promoted to appellate judgeships by a governor of another party.

He says that all commission members have the opportunity to be full and equal participants in the process. “When people get in that room, they try to be good citizens,” he said.

Judges who’ve gone through the process also have good things to say about the work of the nominating commissions:

Lay members who worry that deliberations may be dominated by the lawyers or judges would do well to visit with the appellate court judges who have participated in the process. They speak glowingly about how judges, lawyers and lay people work collegially and productively, reaching consensus on candidates an overwhelming majority of the time.

These assessments are encouraging testaments to the important role of lay citizens on judicial nominating commissions.  We hope Pennsylvanians will get the opportunity to choose to use a judicial nominating commission for the appellate courts and see first hand how well it works.

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Jan 15 2009

Michigan: Judicial Election System is Broken

An editorial in the Grand Rapids Press bemoans the current partisanship on Michigan’s Supreme Court and notes that combined with the expensive, partisan, divisive electoral system, this is reducing public confidence in the courts:

The bruising November judicial election, which saw former Chief Justice Clifford Taylor ousted by then Wayne County Circuit Judge Diane Hathaway, adds to a compelling case for changing the way the state chooses its most important jurists. Michigan should seriously consider appointing its justices. The court’s dignity and influence have been impaired in recent years by the judicial combat during election campaigns.

The editorial offers several suggestions for reform, including variations on appointment by the Governor with retention elections, apppointment by the governor with legislative confirmation, and Merit Selection:

Legislators and party leaders should sit down for a serious debate about judicial election reform. The unseemly spectacle of the women and men of our judiciary engaged in partisan mud-slinging contests can tarnish the public’s view of the judiciary as an independent body.

Well put.  And so Michigan joins the list of states that look to reform following a tough judicial election season.  We hope the calls for reform grow louder as time goes on.  And we hope that Pennsylvania also engages in a serious discussion about whether judicial elections are the best way to select our appellate judges.

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Jan 13 2009

Mississippi: Is There A Better Way?

Published by under Judges,Opinion

An editorial in the Clarion Ledger asserts that Mississippi’s judicial election system has been undermining confidence in the judiciary:

[T]his state’s judicial elections continue to demean the dignity of the court and to see voters manipulated by special interest groups seeking to hold sway over the judicial philosophies of the courts.

Noting the very expensive and divisive recent elections, the editorial decries the current system of electing judges:

The 2008 judicial elections in the state were a textbook case for why judges should be appointed, not elected. Instead, appellate court seats in Mississippi are like those in many other states.

They are doled out at a political price tag of up to $1 million per judge to candidates who will turn their heads to the sleazy campaign tactics that have come to dictate judicial elections.

2009 is a judicial election year in Pennsylvania.  What will the price tag be for the open seat on the Supreme Court?

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