judgesonmerit.org

Next year, voters in Nevada will be presented with a ballot initiative on judicial selection.  According to the Las Vegas Sun The proposal, which would replace judicial elections with a Merit Selection system, “appears to be on its way to becoming a hot-button issue on the campaign trail.”

Although some observers worry that other ballot races, including the U.S. Senate race and gubernatorial election, will make it difficult to garner attention for the judicial selection question, others believe the issue will get the attention it deserves.  Dan Hart, a political consultant who supports passage of the initiative argues:

“There will be some lively debate on the issue and that’s what it deserves,” he says. “I think we’ll see a far more frank and honest discussion of this, rather than just a 30-second TV spot that gives you just talking points.

“You’ll see the print media write about it. There will be radio ads. And you’ll see the issue included in the debates with the candidates.”

We hope the people of Nevada get to fully explore this issue, and we also hope that Pennsylvanians will soon have the opportunity to engage in meaningful discussions about whether we should change the way we select appellate court judges.  It’s a serious issue worthy of serious discussion.

In a recent column, Jen Huntley of the Reno News and Review reacts to the Caperton decision:

When I read about the Supreme Court decision requiring judges facing civil cases involving significant donors to their own election to recuse themselves, my first response was—this is a no-brainer! How could anyone be impartial in a decision where one of the litigants had donated millions of dollars to get them elected? More to the cynical point—why would anyone contribute that kind of money to get a judge elected unless one thought they might want that judge’s good favor somewhere down the line?

Huntley goes on to explain that she learned from discussing the case that the decision may lead to new problems, like an increasing number of recusal motions. She raises an interesting question about judges who try to recuse but later are ordered by a higher court to hear the case:

In Las Vegas, a judge attempted to recuse himself from a case involving a litigant who had contributed a small sum to the judge’s election. The Nevada Supreme Court instructed him to hear the case anyway.

We have an easy solution for both problems: get judges out of the fundraising business and eliminate the question of recusal in cases involving campaign contributors.  Huntley also seems to recognize that the electoral system is the root of the problem:

Caperton raises the potential for corruption that flows from the system of electing, rather than appointing, judges. Americans adopted the electoral system because it seemed less corrupt. But with election costs skyrocketing, interested donors have more opportunity to try to create a favorable judicial climate for themselves.

Electing judges doesn’t make sense.  Judges should not have to wrestle with whether to recuse because a contributor is in court.  And court-users and the public should not have to worry about whether or not the judge might be biased because of campaign contributors. The solution is clear: Merit Selection gets judges out of the fundraising business.  To us, that’s a no-brainer.

Bob Ewegen over at the Blackacre Journal shared his thoughts about Caperton earlier this week.  After a colorful retelling of the facts, Ewegan notes:

If you’re a fan of author John Grisham, you may recognize the plot of his latest legal thriller, The Appeal, which Grisham admits was inspired by the events in West Virginia.  And as rank as the fictional outcome or the real events may seem to fair-minded Americans, the same outrage could have been perpetrated in any of the thirty-nine states that still elect at least some of their judges in contested elections.

Ewegen notes that his state, Colorado avoids these problems because Colorado uses Merit Selection: “This system is infinitely preferable to letting rich litigators rig the scales of justice by paying millions to elect judges predisposed to their side to the courts that will decide the manipulators’ cases.”

Ewegen goes on to explain the Supreme Court’s decision in Caperton and concedes that the decision, combined with long-existing requirements that judges recuse if they have a direct financial outcome in the case may solve some problems.  But, he argues, “the real answer is for the thirty nine states that still elect judges in contested elections to adopt merit systems like Colorado’s.”

We agree and hope Pennsylvanians will be given the opportunity to decide whether to change the current judicial election system and adopt Merit Selection for the appellate courts.

In the wake of Caperton, an editorial in the San Antonio Express-News urges Texas to adopt Merit Selection for its judges.  Leading the charge for reform in Texas is the current Chief Justice of the Texas Supreme Court, Wallace Jefferson.  His support for Merit Selection continues a tradition begun by his predecessors on the bench; he is “the third successive Texas Supreme Court chief justice to advocate reforming the state’s judicial selection process.”

Jefferson had warned of the danger posed by money-packed judicial elections even before the Caperton decision came down, telling the state legislature earlier this year: “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”  The Express-News‘ editorial board concurs:

The judiciary system depends on an even playing field to maintain fairness.  And the influence of money and partisanship must be reduced to deliver the even playing field that Texans deserve.

That’s something everyone deserves — including Pennsylvanians.  The way to achieve that even playing field is by getting judges out of the fundraising business. The way to do that is to adopt Merit Selection.