judgesonmerit.org

In an op-ed in The Tennessean, Tennessee attorney (and former Tennessee judge and Attorney General) Paul Summers makes a persuasive argument about why Merit Selection is the best way to select appellate judges.  The core of his piece is his explanation of the role of an appellate judge:

Instead of black robes, judges, particularly appellate judges, should wear black-and-white striped robes. They are essentially referees. They should not make promises about what they are going to do when they get to be a judge. They should not have a voting constituency or be concerned about getting votes. . . .

A judge’s constituency should be the law and the facts of the case as presented. Judges are not supposed to prejudge anything. Even if judges have personal beliefs about an issue, they are supposed to hang those beliefs on the coat rack where they keep their robes — before they go on the bench.

This makes sense to us.  Combine that explanation with the growing problem of money in the judicial election system, and you have a winning case for Merit Selection of appellate judges.

The Southeast Texas Record reports that a judge in Texas is being asked to recuse because of campaign contributions made to him by lawyers representing defendants in a toxic exposure case. During a recusal hearing before a different judge (following the original judge’s denial of the recusal motion), the plaintiffs argued:

“We don’t think we can get a fair trial from Judge Floyd. . . It’s undisputable he has taken money from the (defendants’) law firm … we believe the payment is a violation of due process.”

Both parties discussed Caperton v. Massey during the recusal hearing: defendants argued that Caperton was much more “egregious”, while plaintiffs noted “the case shows a growing ‘national concern’ to whether judges should preside over any case where donated money turns out to be the focal point.”

Which all raises the question: why are states like Texas and Pennsylvania still choosing judges in a way that requires fundraising from lawyers and parties that later appear in court?

That’s the headline the Pittsburgh Post-Gazette ran above PMC’s letter to the editor regarding their editorial about Caperton v. Massey.    We think that headline says it all.

PMC’s letter to the editor in response to the Philadelphia Inquirer’s editorial on Caperton v. Massey identifies Merit Selection as the way to get judges out of the fundraising business.  In the letter, PMC argues that rules requiring recusal in cases involving campaign contributions are a good first step, but more is needed to address the poisonous role of money in judicial selection:

It’s time to get judges out of the fund-raising business altogether. Today, when most of those surveyed are worried about the impact of contributions on how judges rule, we need a system that takes money far away from the scales of justice. When you go to court, you want a judge who considers the facts and the law; you shouldn’t be worrying about whether your lawyer or the opposing side gave a campaign contribution. Replacing elections for appellate court judges with merit selection is the way to eliminate this concern.

This weekend’s issue of Parade Magazine briefly recaps the Caperton v. Massey case and asks “Can Judges Be Bought?”  Justice At Stake’s Charles Hall is quoted:

If you were in court and found out that your opponent was one of the biggest contributors to the judge, would you be happy?  I think almost all Americans would say, ‘I want a different judge.’

There’s an on-line poll asking readers: “Should a judge be allowed to hear a case involving a campaign contributor?”  As of this writing, 93% of respondents answered “No.”  We’ll tune in for final results when the polls close.

An editorial in the Allentown Morning Call, inspired by the judicial scandal in Luzerne County, urges Pennsylvania to adopt a Merit Selection system.  The Luzerne scandal, which continues to broaden in scope, involves two state court judges pleading guilty to federal charges related to their allegedly receiving kickbacks for referring juvenile defendants to a particular detention facility.  The case has rocked Luzerne County and the entire state, and the Pennsylvania Supreme Court has taken action to have court operations reviewed and the juvenile cases reexamined.

The editorial lays blame not only at the feet of the judges involved in the scandal, but also argues the state Supreme Court should have intervened earlier.  Observing that redress is difficult, the editorial urges:

[T]here is a long-range reform that holds promise for improving the appellate courts, one that these pages have supported for years: Merit selection, instead of the political election of judges.

Two of Pennsylvania’s major newspapers, inspired by the Caperton v. Massey argument this week, are calling for Merit Selection.  In an editorial, the Philadelphia Inquirer argues:

Spending on statewide judicial races underscores the messy business involving the river of money that flows through judicial elections. Checks often are written by lawyers who then appear before judges – an apparent conflict that the majority of voters have told pollsters they find troubling. . . .

The antidote to those elections, of course, is to switch to the merit-based appointment of appellate judges. . . .

The Pittsburgh Post-Gazette concurred on its editorial page.  Quoting Justice Kennedy’s observation that “Our whole system is designed to ensure confidence in our judgments,” the Post-Gazette argued, “Of course, that system would be much better if judges were selected in merit-based systems not susceptible to campaign contributors.”

As we’ve stated repeatedly, we think recusal rules in cases involving campaign contributors is a good place to start to address the problem of money in judicial elections. That’s why we joined an amicus brief in the Caperton case.  But the better course of action – - and a more permanent solution — is to get appellate court judges out of the fundraising business altogether.  Merit Selection accomplishes that, and we’re heartened to see these public calls for real reform.

WHYY, the NPR affiliate in Philadelphia, interviewed PMC Associate Director Shira Goodman about the Caperton v. Massey case, its possible impact on judicial elections on Pennsylvania, and the efforts to bring Merit Selection to the Pennsylvania appellate courts.  To listen,Download Audio (mp3) here.

Our friends at Gavel Grab offer a complete analysis of the Caperton v. Massey argument, including commentary from PMC, the League of Women Voters and other amici.  Gavel Grab quotes PMC Associate Director Shira Goodman:

“Pennsylvania, which elects all judges in partisan elections, has seen first hand the steadily increasing influence of money in judicial elections. Coupled with that has been the decreasing public confidence in the impartiality of our courts. The more money that comes in, the less confidence the people have. The scales of justice need to be rebalanced. A strong decision by the Supreme Court requiring recusal in at least some cases will help to do that.”

Also posted on Gavel Grab is an email Justice At Stake sent to its Partners (including PMC) about the case, concluding with this encouragement:

We now must wait until the Supreme Court rules, but the last few months already represent an extraordinary victory in educating the public on threats to our courts, and in commanding media attention on the critical issue of protecting impartial courts from special-interest money.

The United States Supreme Court has just posted the transcript from this morning’s oral argument in Caperton v. Massey.  We’ll post some highlights when we finish reading!