judgesonmerit.org

The Times-Tribune of Scranton editorialized this week about some of the problems inherent in electing judges.  Focusing on some local judicial candidates’ remarks to the local police union about the current contract status of the police and firefighters, the editorial explains:

The police union, or any other union, naturally would want to know how candidates stand relative to issues that affect that particular group.

But judges are not policymakers. They are supposed to be neutral arbiters of the law. That’s why the state Canon of Judicial Conduct precludes all judicial candidates from being involved in campaigns other than their own. It’s to preserve their neutrality when they are on the bench.

Now, one candidate believes that her opponent won the union’s endorsement because of his remarks about the contract and the Mayor.  The editorial notes that under the Code of Judicial Conduct, neither candidate should be able to hear a case about the contract because they have openly announced their opinions on the matter. The rules governing candidate speech have been changing and restrictions have been loosening.  But candidates cannot promise how they would rule in future cases.  If one of these candidates becomes judge and is later called upon to rule on an issue related to the union contracts, questions could be raised because of the campaign trail comments.

Ultimately, people want the most qualified, fair and impartial judges sitting on the bench.  As the editorial concludes, “Judges are supposed to carry the banner of the law, rather than that of any interest group. Incidents such as this are good arguments for merit selection.”

In a blog post about the Pennsylvania courts, Allentown Morning Call columnist Bill White notes that our system for selecting appellate court judges doesn’t make any sense.  He had harsh words for the electoral process:

[J]udges are selected by voters who have no clue about their credentials and . . . the best way to ensure election is to accept help from political power brokers. Until we switch to merit selection — still political, but much more likely to produce high-quality judges — or at least regional representation so voters have at least a slight chance of knowing something about the candidates, we’ll be left with eenie-meenie-miney-moe and a lousy state judiciary.

The electoral system is not the best way to select judges — good judges make it to the bench despite the system, not because of it.  Under Merit Selection, qualifications, skill, experience and one’s reputation for honesty and fairness would be the factors emphasized in picking judges.

That’s how Philadelphia Inquirer columnist Karen Heller described judicial elections in Philadelphia, going on to explain: “It’s a sordid stew of too many names, an antediluvian political system dependent on hackery, street money, and puffed-up ward leaders, plus a decided lack of information and, alas, even less interest.”

Heller counted 38 candidates running for Common Pleas Court and another 21running for Municipal Court.  How can voters wade through this thicket:

Voters end up voting for someone because he shares the name of a best friend from grade school or sounds like someone he once voted for some other time or simply has the great fortune to land by lottery at the top of the ballot.

PMC Executive Director Lynn A. Marks confirmed Heller’s assessment:

“It’s very difficult to get enough meaningful information to make informed choices about judges. . . . Every election cycle, you hear about candidate support, who won’t get street money, the cost of the election, ballot position. . . . You hear about everything except qualifications.”

And that’s really the problem, because  we should be choosing judges based on qualifications, skill, experience and reputations for fairness and integrity.  Judicial elections just don’t focus on those things.

The “Clout” section of the Philadelphia Daily News reports that the Philadelphia Democratic party is working to ensure that this year the party is unified behind its endorsed judicial candidates for the local courts: “Democratic City Committee chairman Bob Brady has cracked the whip on ward leaders, telling them that they can either support the party’s judicial candidates in the May 19 primary or forget about “street money” for Election Day operations.”

Brady apparently has been dismayed by the dilution of the influence of the party endorsement, in large part due to the use of “consultants” who, for large fees, connected candidates with ward leaders to make their own “endorsement” deals.

At the party’s meeting in late March, the ward leaders committed to support the endorsed candidates and passed a resolution under which candidates who run against the endorsed slate will not be considered by the party to fill future judicial vacancies.  One ward leader said, “‘It makes the party brand worth something. . . and it will lower the cost of judicial elections.”

In Bucks County, the political parties are also working to ensure that party endorsements mean something, but with a twist. The Philadelphia Inquirer reports that the local Democratic and Republican parties have united behind a slate of three candidates, two Republicans and one Democrat, for the upcoming judicial elections.

PMC, when questioned about this, explained:

Bipartisan endorsements, though informative, are not akin to merit selection. . . . “It doesn’t remove problems such as having to raise money from lawyers who come before the judges.”

Why should party politics determine who becomes a judge?  Shouldn’t qualifications, skill, experience and a reputation for honesty, integrity and fairness be the key factors in determining who reaches the bench?  Under Merit Selection, that’s what would happen.  Judicial elections focus on other factors — like fundraising ability, skill as a campaigner, and party politics.  We think there’s a better way.

In a commentary piece (subscription required) in the Legal Intelligencer and the Patriot-News, Chief Justice Castille highlights the Court’s dedication to restoring confidence in the justice system following the scandal in Luzerne County.

The Chief Justice writes:

As leader of the Pennsylvania court system, my top goal is for the citizens of this commonwealth to trust their judges and for judges at every level to deserve that trust.  It is of the utmost importance for any individual who faces any judge in a courtroom to have confidence that he or she will be treated fairly, and for all Pennsylvanians to have that same sense of confidence, because a sound court system is essential to our system of government — and to our very freedom.  How do judges earn the confidence of the citizens? We expect judges to be fair and impartial. We expect judges to be unaffected by either side or by outside influence. We expect that judges will not favor the strong over the weak or the rich over the poor. Above all, we expect judges to adhere to their oaths of office.

The Chief Justice goes on to outline steps taken to date to rectify the problems in Luzerne and to restore the public’s confidence.  He notes the work is ongoing and pledges that the Court “will do all in its power to ensure that justice is done fairly and honestly in Luzerne County and in every courtroom in this commonwealth every day.”

This is good news, and we applaud the Chief Justice and the entire Court for acknowledging that even an isolated scandal taints the entire judiciary.  The Chief Justice’s quote from Henry Ward Beecher highlights this: “‘Take all of the robes of all of the good judges who have ever lived on the face of the earth and they would not be large enough to cover the iniquity of one corrupt judge.’”

An editorial in the Knoxville News Sentinel urges Tennessee to keep using Merit Selection.  While acknowledging that the system could be amended somewhat to improve transparency and increase public input, the editorial argues that moving to judicial elections would be a serious mistake:

Judges are not legislators. Running for office statewide puts them in the position of having to raise money for elections – and allegiance to big-time donors perverts the ends, if not the means, of justice.

A recent Supreme Court election in Alabama cost $5 million, and a similar race in Illinois five years ago exceeded $9 million.

Imagine a statewide judicial election in Tennessee on that monetary scale. A judge winning such a contest will not create a constituency but obligations that will haunt him or her on the bench. Judges’ constituencies should be the law, reflected in the books on their shelves and their years of study and experience.

We agree, and share the concerns about the role of money in judicial elections. Of course, we’re in good company, as recent polls show the vast majority of the American public is concerned about the effect of campaign contributions on judicial decision-making.

The editorial closes by citing retired United States Supreme Court Justice Sandra Day O’Connor: “‘Justice is a lot like friendship; if you have to pay for it, it’s not worth much.’”  That pretty much sums up one of the best reasons to choose Merit Selection.