judgesonmerit.org

The Harrisburg Patriot-News is urging Pennsylvania to choose Merit Selection. An editorial inspired by the Caperton decision and the recent introduction of legislation that would implement Merit Selection for the appellate courts argues:

The egregious West Virginia case is the kind of scenario that opponents of our current system of electing judges have warned against for years. When candidates are forced to raise so much money for a judge seat, it is difficult for them not to find themselves rendering decisions involving some of their contributors.

Studies show that much of the money raised for judges is contributed by lawyers and in Pennsylvania there are no restrictions on judges presiding over cases involving those who contribute to their campaigns.

This is a serious problem. If nothing else, it provides the basis for a public perception of bias. And the fact that those who want to sit impartially on our state’s highest courts are raising money through one of the two major political parties — after getting that party’s endorsement — is just wrong.

The editorial poses Merit Selection as the solution and goes on to describe the recently introduced legislation.  The editorial concludes that the Caperton case is “s a warning sign of what could happen here.”

Two major Pennsylvania newspapers today featured editorials inspired by the Caperton decision, and both argued for replacing judicial elections with Merit Selection.  The Philadelphia Inquirer offers this stinging assessment of judicial elections:

The river of money that sloshes through campaigns to elect judges in Pennsylvania and Philadelphia has long raised questions about the quality of justice and one’s ability to remain impartial – especially when a big donor is party to a case. . . .

The whole process stinks and does little to bolster the quality of judges, while undermining public confidence in the judiciary.

That’s why the Supreme Court decision offers the best justification yet to reform the way Pennsylvanians select judges.

The Pittsburgh Post-Gazette’s editorial is equally critical of judicial elections:

The final note of depression is that this case flows from a system that makes no real sense and shows no sign of changing — the election of judges. As long as money is exchanged to support judicial candidates, the potential for bias will be there, no matter how little or extraordinary the sum.

This is a key point: even in cases involving parties or attorneys who made less eye-popping contributions to the judge’s campaign, the potential exists for bias or at least the perception that the playing field is not level.  No one should be worrying in court whether the opposing party or counsel contributed to the judge’s campaign.  The solution is clear: Merit Selection gets judges out of the fundraising business.

Folks are wondering what the United States Supreme Court’ s decision in Caperton will mean for Pennsylvania, one of only six states that elects all judges in partisan election contests.

Although the high Court recognized that in an extreme case campaign contributions can require recusal, we think Pennsylvania judicial elections won’t change very much as a result of the decision.  Instead, the money will keep rolling in and, although there may be some more recusal motions filed on the basis of those donations, judges likely will not believe that the Caperton decision compels them to recuse on a regular basis.

But that doesn’t have to mean business as usual in Pennsylvania.  According to an article in the Philadelphia Inquirer, many are predicting that Caperton will give an extra energy to the drive for Merit Selection.  Philadelphia Bar Association Chancellor Sayde Ladov explained, “This may well be the first step toward merit selection.”  Chuck Ardo, spokesman for Governor Rendell, agreed.

Legislation has just been introduced in Pennsylvania to implement Merit Selection for the appellate courts.  As PMC Executive Lynn Marks has explained, “The Caperton decision recognizes the danger inherent in the judicial campaign contribution game.  We believe the best solution is to get judges out of the fundraising business altogether — by instituting Merit Selection.”

Not surprisingly, there’s been a lot written about the United States Supreme Court’s decision this week in Caperton. The Philadelphia Inquirer has written several articles focused on the decision, and its impact on Pennsylvania, including the views of those who believe Merit Selection is the answer.  As Rob Beyer, a former Pennsylvania judge, explained:

‘The Supreme Court’s Caperton decision is a narrow ruling concerning an extreme situation, but it highlights the fundamental inconsistency between selecting judges in partisan elections and the principle, required by constitutional due process, that judges not only must be impartial, but must maintain an appearance of impartiality.’

Beyer explained that he was hopeful that the decision would generate support for the adoption of Merit Selection in Pennsylvania.

The New York Times’ report on the decision can be found here; today’s article focuses on the probable impact of the decision.  The Times’ editorial on the decision concludes:

Chief Justice Roberts is fond of likening a judge’s role to that of a baseball umpire. It is hard to imagine that professional baseball or its fans would trust the fairness of an umpire who accepted $3 million from one of the teams.

Our friends at Gavel Grab offer extensive coverage of the decision as well as important analysis.

In the wake of the judicial primary elections and on the same day the United States Supreme Court found that campaign contributions required a judge’s recusal, PMC and PMCAction are proud to announce that new legislation has been introduced into the Pennsylvania House and Senate to implement a Merit Selection system for the three statewide appellate courts.

We applaud  prime Senate sponsor Sen. Jane Earll, R-Erie, and cosponsor, Sen. Daylin Leach, D-Delaware and Montgomery, and House sponsors Reps. Matthew Smith, D- Allegheny, and Will Gabig, R- Cumberland, for their leadership in working to create a better system for selecting appellate judges.

As Senator Earll explained, “The public has been losing confidence in the fairness of our courts and judges, in large part because big campaign contributors often appear in court before the judges they support.  We need a system that encourages public trust and confidence in the courts. That system is merit selection.”  Representative Smith concurred, noting that “I am pleased to advocate for this key reform to our judicial selection process so that we can ensure the system is fair and reasonable.”

We are pleased that Pennsylvanians will have the opportunity to discuss how we should be selecting our appellate court judges.  This is a critical issue, and it has been a hot topic recently because of the recent elections, the nomination of Judge Sotomayor to the United States Supreme Court and the anticipated decision in Caperton v. Massey. Pennsylvanians should continue to raise questions and debate the issue.  We sincerely hope that this process will result in the question being put to Pennsylvania voters in a referendum to change the constitution.

A brief summaryof the legislation can be found on our legislation page.  The text of the proposed amendment and accompanying enabling legislation are available: SENATE BILL No. 860 and HOUSE BILL No. 1621 (proposed amendment); SENATE BILL No. 861 and HOUSE BILL No. 1619 (proposed enabling legislation).

We hope to engage in a productive dialogue.

The United States Supreme Court today announced its decision in Caperton v. Massey, the West Virginia case asking whether the Due Process Clause requires judges to recuse in cases involving campaign contributors.

The Court, in a five-four decision authored by Justice Kennedy, ruled that in some cases, circumstances — including the amount of the contribution, the proportional size of the contribution related to other campaign fundraising and expenditure, the probable impact of the contribution on the election, and the timing of the litigation — may require recusal because “there is a serious risk of actual bias.”

The Court made clear that the inquiry is not whether there was actual bias, but whether all the circumstances create too great a risk of bias:

Although there is no allegation of a quid pro quo agreement, the fact remains that  Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome.  Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.  And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

PMC is heartened that the Court recognized that expensive judicial elections and the fundraising and contributions they require can create serious perception and confidence problems for the public.  We fear, however, that the dissenters’s predictions of future confusion and ongoing litigation will come to pass.  We believe the best solution is to get judges out of the fundraising business altogether and end the poisonous campaign contribution game by changing to Merit Selection.

The Herald Standard of Uniontown, PA  calls for Pennsylvania to adopt Merit Selection for the appellate courts.  Rejecting the current electoral system, the editorial argues:

Electing appellate court judges is Pennsylvania’s version of “Eenie, Meenie, Minie, Moe.” Voters blindly select candidates based on extraneous factors such as gender, ethnicity, home county (which appears on the ballot), party endorsement and ballot position.

The editorial goes on to criticize the electoral process in which it is difficult for voters to make meaningful decisions about candidates and in which success is too often tied to factors unrelated to qualifications to serve on the bench.  This, combined with the role of party politics and the influence of campaign contributions, leads the Herald Standard to proclaim:

We join organizations such as Pennsylvanians for Modern Courts and the Pennsylvania Bar Association in calling for merit selection of appellate judges.

We’ve posted here and here about how important it is to have “the right name” when running for judge.  In some cases, familiar names or “ethnic sounding” names have contributed to a candidate’s success at the polls.

Now, the Pittsburgh Tribune-Review reports that the victorious candidate in both the Republican and Democratic primaries for a district judge seat credits her success to having a good name.  Maureen McGraw-Desmet, daughter of sitting judge Elaine McGraw, whose seat is being filled by this election, notes the effect of name recognition in her electoral victory:

McGraw-Desmet conceded that name recognition helped her win 37 percent of the 2,536 votes cast in the Democratic primary last month and 30 percent of the 1,337 votes in the Republican primary. . . . “Undoubtedly, my mother’s good reputation as district judge went a long way toward helping me win.”

Judicial elections are too eaily influenced by factors unrelated to a candidate’s qualfications to serve — including ballot position, fundraising ability, political party support, and having “the right name.”

During the last year, we’ve periodically reported about the legislative wrangling over whether or not to renew Tennesee’s Merit Selection system.  Well, it seems that Tennessee is sticking with Merit Selection and as the headline reads in the Tennessean “rejecting the election of judges.”

As the Tennessean reports, the House and Senate have each passed bills to maintain the current system, which uses a nominating commission and retention elections.  There will be some changes to the process, including a reduction in the number of lawyers on the nominating commission.

The Chattanoogan‘s report offers a run down of the votes and also quotes Tennesse Bar President Buck Lewis: “‘We are pleased that it now appears that Tennessee will continue to have a system of merit selection and retention elections for appellate judges.’”

Smart move, Tennessee.