Archive for February, 2009

Feb 26 2009

Perception and Reality — Linked Together When it Comes to the Courts

Published by under Judges,Opinion

A column by Detroit Free Press assoicate editor Ron Dzwonkowski offers a straightforward, no nonsense approach to the upcoming United States Supreme Court case of Caperton v. Massey.  As we’ve reported, this is the case from West Virginia that presents the question of whether judges have to recuse (step aside) in cases involving campaign contributors.  Mr. Dzwonkowski writes:

Where the courts are concerned, if it looks bad it is bad, so don’t do it. In the legal system, fairness is paramount and the appearance of fairness is … whatever comes right under paramount.

We agree that when it comes to the courts, perception is as important to reality.

His common sense reasoning leads Mr. Dzwonkowski to urge the Supreme Court to decide that: “A judge cannot rule on a case involving anyone, any company, any group, that gave the judge money or otherwise helped the judge win his or her judgeship.”

Lots of folks will be watching next week’s oral argument and the anticipated decision later this spring with great anticipation.   Here in Pennsylvania, it’s election season, so the decision could have immediate impact.  We’ll be following the case closely.

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Feb 24 2009

Survey Says: “Campaign Cash Has No Place in the Courtroom”

Our partners at Justice At Stake commissioned a survey about the public’s attitudes towards the influence of campaign contributions on judicial decision-making , and guess what they found:  “An overwhelming percentage of U.S. adults believes that judges cannot be completely impartial and should not participate in cases that involve large campaign contributors.” As reported on Gavel Grab and in Justice At Stake’s press release, 81% of those surveyed also believe that judges should not be making their own decisions about recusing in such cases but instead should abide by the decision of another judge.

Reflecting on the poll results, Justice At Stake Executive Director Bert Brandenburg explained:

Americans overwhelmingly believe that campaign cash has no place in the courtroom. . . . They are very skeptical that a judge can be impartial when one side has spent big dollars to help put them on the bench.

As Pennsylvania’s judicial election season heats up, we should be asking ourselves why we continue to put would-be judges in the position of funding their campaigns with contributions from parties and lawyers likely to appear before them in court.  Why do we tolerate a system that undermines confidence that justice will be meted out impartially? It’s time for a change.  We need to get judges out of the fundraising business. Merit Selection can do that.

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Feb 23 2009

Is There A Link Between Campaign Contributions and Courtroom Decisions

Published by under Judges,News

We know that many, many people are concerned about the influence of campaign contributions on judicial decision-making.  But is there really a link or is it all just a question of perception?  The National Law Journal is reporting on a new study about the link between campaign contributions and decisions in the courtroom: “Is justice for sale? There is a strong relationship between campaign contributions and decisions by state Supreme Court judges in states that elect those judges, a recent study finds.”  The study found the link to be strong in states that elect judges in partisan contests.

The study by political scientists Chris Bonneau of the University of Pittsburgh and Damon Cann of Utah State University looked at three states — Nevada, Texas and Michigan.  Michigan and Texas use partisan elections to select judges, and Nevada uses nonpartisan elections. The influence of campaign contributions on decision-making — when other factors such as ideology were controlled for — was stronger in the partisan election states.

This is important information for Pennsylvanians to hear as we enter judicial election season.  Remember, we’re one of those states that uses partisan elections.  Isn’t it time to get judges out of the fundraising business?

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Feb 20 2009

Changing the Rules in Wisconsin

Published by under Judges,News

Our friends at Gavel Grab have a very interesting post about the recent decision of a federal court judge striking down various restrictions on the conduct of judicial candidates in Wisconsin.  In short, “State judges can now join political parties, endorse political candidates, and seek  campaign contributions. . . .”  The decision of U.S. District Judge Barbara Crabb in Siefert v. Alexander can be found here.

An article in the Milwaukee Journal Sentinel focuses on the rule allowing candidates to join political parties, but we’d like to discuss the rule change that will now allow judicial candidates to personally solicit campaign contributions.  Pennsylvania has a rule in place similar to the one struck down in Wisconsin that prohibits judicial candidates from personally soliciting campaign funds.  Instead, they must create campaign committees to handle the fundraising.  But Judge Crabb points out that the use of campaign committees does not solve the problems inherent in fundraising for judicial elections:

Defendants may mean to say that a campaign solicitation from a judicial candidate is more coercive because of the possibility that the potential donor will find herself in that candidate’s court after he is elected.  If that is so, defendants give no reason to believe that the problem is solved by the use of campaign committees.  As plaintiff and other courts have pointed out, a campaign committee does not stop a candidate from discovering who donated and who did not, rendering illusory any belief by the potential donor that he is freer to say no to the committee than the candidate himself.

Judge Crabb also rejected the argument that using campaign committees for fundraising helps increase public confidence:

To the extent judicial fundraising undermines confidence in the judiciary, it is a result of judges’ deciding cases involving those to whom a judge is financially indebted and may be again at the next election cycle.  Neither defendants nor the cases they cite identify any reason to believe that voters are less suspicious of such a relationship simply because the contribution request is signed by the committee chairman rather than the candidate.

In Wisconsin, judicial elections will not look more like elections for other public offices.  But for a position that’s so different from that of other public officials, perhaps it’s time to explore making the selection process for judges totally different.  It’s time to stop electing judges.

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Feb 19 2009

Merit Selection is the Way

Over at CoffeeSpoons, blogger Matthew Jones in Indiana makes a good case for why electing judges is a bad idea.  Arguing in favor of maintaining Merit Selection for the Indiana Supreme Court, he observes:

My primary reason for opposing [judicial elections] is that it would require potential justices to wade into the muck and mire of the political arena.  They would have to organize extensive fundraising campaigns.  They would be forced to solicit massive campaign contributions, and to court the approval of special interest groups who would hope to gain from the election of favorable justices.  Rather than exercising only their independent legal judgment, they would have to be concerned about following the political mood of the day, and about pleasing their campaign supporters.  All of this strikes me as being inherently bad.

Sound familiar? This is how things work in states, like Pennsylvania, that elect their judges.  Commenting on how judicial elections look from the outside, Jones writes:

Our neighboring states that have systems for elected appellate judges have seen literally millions of dollars poured into the campaigns of candidates by special interest groups hoping to influence election outcomes.  That situation has to undermine the public’s confidence in the impartiality of the judiciary.

Well, he’s right. As we reported yesterday, a USA Today poll revealed that 89% of those surveyed are concerned about the influence of campaign contributions on judges.  It’s time to get judges out of the fundraising business.

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Feb 18 2009

USA Today Poll Shows Big Concerns About Effect of Campaign Contributions

In a front-page article about the Supreme Court case of Caperton v. Massey, USA Today presents sobering statistics about the public’s perception of the effect of campaign contributions in judicial elections:

A USA TODAY/Gallup Poll this month found 89% of those surveyed believe the influence of campaign contributions on judges’ rulings is a problem, and 52% deem it a “major” problem. More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge’s election campaign.

Recusal — when a judge removes him or herself from a case — is the big question the United States Supreme Court must tackle.  But we think these survey results raise a bigger question: why are we choosing judges through expensive elections that require such contributions in the first place.  There is a better way: Merit Selection.

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Feb 17 2009

Merit Selection Can Help Increase Confidence in Our Courts

The Times Leader, serving Northeastern Pennsylvania, published a commentary piece by Pennsylvanians for Modern Courts this weekend addressing how to increase public confidence in our courts.  There has been a string of cases involving judges getting into criminal and/or ethical trouble, most recently a scandal involving two judges in Luzerne County.  PMC offered three suggestions for restoring public confidence:

First, our judicial discipline system must be strong, independent, willing and able to mete out strict discipline when necessary – even if it means stripping someone of the privilege of serving as a judge. . . .  Second, our bar leaders and court leadership should express outrage – on behalf of the people – at criminal and unethical conduct by judges. . . . Finally, Pennsylvanians should move forward with a constitutional amendment to change the way we select judges.

The third suggestion requires systemic reform, legislative action and broad public support.  We believe the outcome would be worth the effort:

We already know that many Pennsylvanians are concerned about the pernicious effect of money in judicial campaigns. We must get money out of the system of selecting judges and focus on qualifications, experience and the highest ethical standards. Elections, unfortunately, don’t emphasize these factors. We need a system that does.

An editorial introducing our piece called our suggestions “worth studying.”  We hope that Pennsylvanians will agree that it’s time to look for real solutions.

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Feb 13 2009

Raising Questions about Recusal in Pennsylvania

The Allentown Morning Call reports that a judge in Northampton County is being criticized for failing to reveal that he received campaign contributions from a party involved in a case. The case initially had been assigned to another judge, who recused herself because she had received campaign contributions from one of the parties.  Although the second judge raised other potential conflicts of interest, he did not disclose the campaign contributions and did not recuse.

In Pennsylvania — as in most states — judges are not required to recuse when campaign contributors are involved as parties or lawyers.  That very issue is now before the United States Supreme Court in Caperton v. Massey, which asks whether the Due Process Clause requires recusals in cases involving very signficant campaign donors.

The donations at issue in the Northampton County case are much smaller than in Caperton, but the same concerns are present: can courts maintain actual independence and can the public believe courts are independent when judges preside over cases involving campaign contributors?  We have long believed that the increasingly important role of money in judicial elections is damaging to the independence of the judiciary and the public’s confidence in the fairness of the courts.  The best way to solve this problem is to get judges out of the fundraising business.  Merit Selection can do this.

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Feb 12 2009

Texas Chief Justice Calls for Merit Selection

The Austin-American Statesman reports that Texas Chief Justice Wallace Jefferson called for Merit Selection during his biennial State of the Judiciary address to the legislature:

Jefferson reserved the bulk of his speech for what he called “the corrosive influence of money” in judicial elections. Polls show that more than 80 percent of Texans believe campaign contributions influence courtroom events, he said.

“That’s an alarming figure — four out of five,” Jefferson said. “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”

Chief Justice Jefferson’s proposed solution is Merit Selection, and he follows in the footsteps of his predecessors who also criticized the judicial election system and called for reform.

As one court watcher, Craig McDonald, director of Texans for Public Justice, noted, ““Chief Justice Jefferson’s acknowledgement that the Texas judicial election system is broken is the first step in restoring faith in Texas courts.”  As in Pennsylvania, reform in Texas requires a constitutional amendment.  We hope the people will get to make the chance to decide for themselves whether to change the way judges are selected.

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Feb 10 2009

Observer-Reporter Calls for Merit Selection

An editorial in the Observer-Reporter, serving Washington and Greene Counties, criticizes the judicial election process and editorializes in favor of a Merit Selection system for the statewide appellate courts.  The editorial lists the candidates endorsed by the state Republican Democratic parties and asks:

[I]s there anyone reading this (lawyers excepted) who ever heard of any of these people? Those who even bother to vote for these offices will no doubt do so on the basis of geography or nationality. Or maybe they’ll just pick candidates at random.

This is no way to do things. Selecting judges by popular election is a good idea at the county level where the candidates are well known, but at the state level it amounts to a crapshoot. The ideal method would be to set up an independent panel to recommend judges and keep the political parties out of it.

This makes sense to us, and we hope as the election season progresses, more Pennsylvanians will begin questioning why we still elect our appellate court judges.

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