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Archive for April, 2009

Apr 29 2009

“What’s Wrong with Electing Judges?”

Sheila Seuss Kennedy, a professor of law and public policy in Indiana, published an op-ed in the Indianopolis Star making the case against electing judges:

What’s wrong with electing judges? The answer to that question involves the nature of a judge’s job.

The ideal jurist should have solid legal skills, a “judicial temperament,” and unquestioned integrity. Most importantly, he or she must be guided by the rule of law — not the desires of the electorate. People who argue for judicial elections in order to get judges who will be “responsive to the voters” do not understand the role of the judiciary in American law. . . .

In our system, the legislature is the branch of government accountable to the electorate; the judiciary is accountable to the constitution and the law.

This makes sense to us. Judges are different, and it only stands to reason that they should be selected differently than other public officials.  After all, if you treat judges like all other public officials until the moment they take the bench, what guarantees that they will be treated and will act differently from other public officials when they are sitting on the bench?

Kennedy also notes that the electoral process and its emphasis on fundraising cause real concern for the public:

When I was practicing law, it wasn’t uncommon for clients to express apprehension about going to court. Among their concerns was the relationship between the judge and the lawyer representing the adverse party: Were they poker buddies? Had the lawyer contributed to this judge’s campaign? Did he or she practice with a law firm that had hosted a fundraiser for the judge?

It is disturbing that so many people share these worries.  The electoral system fosters these concerns and does nothing to alleviate them.  Merit Selection gets judges out of the fundraising business and recognizes the unique role judges play in our system of government.  It’s time for a change.

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Apr 28 2009

Lawyers Helping Judges Get Elected

Published by under Judges,News

The Public Opinion of Chambersburg has an in-depth article about the upcoming judicial elections.  It opens with this assessment of how elections work:

Lawyers become judges with the help of their peers.  Judges will decide cases argued by the same lawyers who supported them or opposed them during the campaign.

Judicial candidates bristle at the suggestion they could play favorites or hold grudges from the bench. But, they fret about appearances.

The article notes that the four candidates running for two open judicial seats on the Franklin/Fulton County Court of Common Pleas each have the backing of local attorneys, and it goes on to explain that the campaign of one candidate is being run by the current District Attorney.  Asked about whether or how that will affect future cases heard by that candidate, PMC Executive Director Lynn A. Marks explained:

“I don’t know of anything legally or ethically wrong with that. . . . It will raise questions if she is elected. Will she be seen as partial to the district attorney’s office? It will raise a question when criminal cases come before her.”

The article explores the candidates’ positions on when recusal — especially in cases involving lawyers assisting the judicial campaign — would be appropriate.  In addition, the article raises the question of campaign fundraising; all of the candidates have accepted campaign contributions from attorneys.  This is permissible under the law and the Code of Judicial Conduct, but it does raise perception problems with the public:

Clients are less likely to understand and accept the process than their attorneys, according to [PMC’s Marks]. When you’re in court, you shouldn’t have to worry about whether your attorney gave as much to the judge’s campaign as your opponent’s lawyer, she said.

This is a central problem with the judicial election process. The people who are most involved in the process — including as campaign contributors — are the lawyers who later practice before the judges.  This makes sense, but it may foster the public’s lack of confidence in the ability of the judges to later be impartial when those lawyers appear before them.   We need a better way to select judges.

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Apr 27 2009

Judges and Campaign Contributors

Published by under Judges,News

The Allentown Morning Call, analyzing how often local judges end up presiding in cases involving campaign contributors, found that “[o]ut of seven judges examined, only one was found to have no cases involving significant donors.”  This review looked at the parties involved in civil cases, but did not include donations from lawyers or law firms.  The results compelled the following conclusion:

The instances underscore how judicial rules basically leave it up judges to decide whether they should recuse themselves from a case. They also demonstrate how Pennsylvania‘s system of electing judges leaves the bench vulnerable to claims of one-sidedness or worse, even though the donations are legal.

The article notes that there is growing public concern across the country that campaign contributions may affect a judge’s ability to rule impartially.  PMC Executive Director Lynn A. Marks summed up the perception problem: ”Think about yourself being in court and sitting and wondering whether your opponent or your opponent’s attorney made a large contribution to a judge.”

Clearly, this is something no one should ever have to worry about.  But an electoral system that requires judges and their campaigns to fundraise promotes such concerns.  It’s time to get judges out of the fundraising business.

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Apr 23 2009

Talking About Judicial Selection in PA

Above Average Jane’s post today raises the question of how best to select judges in Pennsylvania:

The question of whether or not judges should be elected at all comes up in a lot of the reading I’ve been doing. Since most voters don’t pay much attention to judicial races many of the campaign donors are lawyers. The same lawyers that will be presenting cases before whoever wins the judicial race. Is that a good idea?

Jane alerts her readers to our blog, and notes that her research to date leads her to lean towards supporting “appointment with a vote on retention.”  This sounds close to Merit Selection — where the citizen based nominating commission screens candidates and recommends the most highly qualified to the Governor; the Governor nominates someone from this list; the Senate must confirm; and the judge, after an initial four year term and then again every ten years, stands before the public in a retention election.

Thanks, Jane for the spot light on our work.  We hope the people of Pennsylvania will keep thinking and talking about the best way to pick our judges.

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Apr 23 2009

More Wisdom from Justice O’Connor

Addressing the St. Joseph County Bar Association in Indiana, retired United States Supreme Court Justice Sandra Day O’Connor shared her wisdom and experience regarding judicial elections and declared that Merit Selection was the solution.  As the Chicago Tribune reports, Justice O’Connor explained that the money involved in judicial elections leads the public to have less confidence in judges:

“I hope that lawmakers will be cautious and look at what an independent judiciary has meant to this nation,” she said. “Our judges must be capable of staying above politics if they’re going to serve the function of making impartial decisions.”

This makes good sense.  We hope Pennsylvania will heed Justice O’Connors words.

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Apr 21 2009

Fighting About Endorsements in Bucks County

The Bucks County Courier Times offers this update on our earlier post about the Bucks County Democratic and Republican parties joining together to endorse a slate of three candidates for the local courts.  Now, a bipartisan group of lawyers in the county has organized to support the election of that slate.  Three candidates also running for the bench who are not part of the slate had strong responses to the news:

[Dave] Zellis, the most vocal opponent of the endorsements, said the public should be wary of judges who take cash from the people who could soon be standing before them in court.

“Judicial candidates should not ask for or accept money or endorsements from lawyers who will appear before them in court because it is simply wrong,” Zellis said. “Judges must be independent and not beholden to lawyers or law firms.”

[Lawrence] Otter agreed.

“I am totally underwhelmed that a new insider group of lawyers is endorsing anyone. This is just another special interest power play to eliminate competition and demean democracy,” he said.

[Michael] Rubin said he also opposes the committee, saying he isn’t accepting campaign money from anyone, especially lawyers.

In response, Christopher Brill, Bucks County Bar Association President and spokesperson for the new bipartisan committee had this to say:

“In a perfect world, there would be no need for judicial candidates to raise money for their campaigns because they would be appointed by way of an unimpeachable merit selection process. In the world we actually live in, judges are elected, and in order to be elected, they must raise money for campaign expenses,” Brill said. ” Since the work of lawyers is most keenly impacted by the quality of the judges, lawyers are naturally more interested in who these judges will be, and likewise, the source of funds for the judicial candidates.”

When you cut through the personal interests involved here, it seems everyone basically agrees on one thing: electing judges in expensive campaigns that require candidates to raise money from lawyers and firms who will later appear before them makes absolutely no sense.  We agree with that, and hope we can count on their support for judicial selection reform.

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Apr 20 2009

Tennessee Chief Justice Makes the Call: Merit Selection is the Way

The Memphis Flyer reports that Tennessee Chief Justice Janice Holder was very clear in her support for Merit Selection during her recent address to the Kiwanis Club.  Explaining why it is imperative that the Tennesse Merit Selection be renewed and continued, Chief Justice Holder offered an eye-opening explanation of the role of judges as referees:

Justice Holder began her luncheon remarks with a tongue-in-cheek announcement. “I’m gong [sic] to talk about basketball,” she said, presenting a facetious proposal to elect officials taking part in NCAA championship tournaments, allowing them to raise money, use attack ads against election opponents, “and show bits and pieces of video of some of these games where there were bad calls.”

After asking rhetorically, “Don’t you think that’s a more democratic way to go about it?”, she answered her own question this way: “It is ridiculous, isn’t it? You wouldn’t want your [basketball] officials to be elected.” Then came her clincher: “Judges are like those officials. You relay on them to call the game fairly.”

Chief Justice Holder is right — the best way to get the most qualifed, fair and impartial judges is Merit Selection.

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Apr 18 2009

An Update on the Quest for Party Discipline in Philadelphia

Published by under Judges,News

The Clout column in the Philadelphia Daily News offers an update on a story we reported about the Philadelphia Democratic party’s effort to ensure that its endorsed local judicial candidates receive total party support:

[Party leader Bob] Brady told ward leaders that their committeepeople would carry the party’s endorsed candidates this year or they could forget about Election Day street money.

There’s just one problem: Some ward leaders can’t tell their committeepeople what to do.

“In our ward, committeepeople want to meet the candidates and make a decision after we discuss it,” said Mike Boyle, who heads the 5th Ward, in Center City.

The column identifies a total of five ward leaders who will challenge the party discipline effort.  “Brady said he hopes the independent wards will support the party’s slate. It won’t help that two of the party’s Common Pleas Court candidates, Roxanne Covington and Sharon Williams Losier, were rated “not recommended” by the Philadelphia Bar Association.”

This is what happens when judges run for election like other officials — party politics, political games, street money all play a role in determining who reaches the bench.  That doesn’t make a lot of sense when the ultimate goal — at least in our minds — is to get the most qualified, fair and impartial judges.

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Apr 15 2009

Is Anyone Voting in Judicial Elections?

One of the main reasons critics offer for their opposition to Merit Selection is their belief in allowing people to vote.  This argument ignores the facts that implementing Merit Selection requires a vote by the people and that Merit Selection involves voting in retention elections.  In addition, the data unfortunately shows that people actually don’t vote in judicial elections.

The Chicago Tribune reports that Wisconsin’s Supreme Court election this year, only 18.4% of the voters participated.  That’s even less than the 19% who voted in last year’s Wisconsin high court race.

Pennsylvania is holding judicial elections this year.  Traditionally, voter turn-out in judicial elections here has been very low.  What will our voter turn-out look like?

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Apr 13 2009

Making the Case for Merit Selection

The Committee for Economic Development, one of our partners in the effort to achieve Merit Selection, has posted an informative and compelling editorial from Trustee Landon Rowland outlining why Merit Selection makes good economic sense.  He explains why the courts and how judges are selected is so important:

A fair and impartial judicial system matters to business and to economic development. All citizens have a stake in this system and should support reforming the way our state judges are selected. The independence of our judicial system is critical to a functioning democracy and the rule of law. The escalation of large financial contributions to judicial campaigns undermines these principles.

The editorial offers several reasons to support the claim that Merit Selection makes good business sense. First, Merit Selection “systems have minimized politics on the bench and have enabled judges to focus on the law, not fundraising or electoral politics.”  In addition, studies show that judicial elections are “bad for economic growth and job creation.”  In these difficult economic times, it is important to recognize that Merit Selection can be part of the practical solution, in addition to being a good government choice.

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