judgesonmerit.org

Yesterday, the United States Supreme Court heard oral argument in Citizens United v. FEC. We reported earlier that we joined Justice At Stake and 18 partners in submitting an amici brief in the case, which focuses on restrictions on corporate contributions in elections.  Gavel Grab has extensive coverage of the argument here.

Justice At Stake Executive Director Bert Brandenburg offers an interesting commentary about the case on the blog of the American Constitution Society.  Brandenburg notes:

Just three months ago, the U.S. Supreme Court reached a historic conclusion in Caperton v. Massey. The majority held that the Constitution sets limits on how much special interests can tilt the scales of justice, by requiring judges to step aside in certain case involving their supporters.

Just three months later, Citizens United v. the Federal Election Commission, the campaign finance case argued today, has seemed to float in an alternate universe. . . .

A comparison of the cases is revealing. While Caperton focused on the courts, its gritty facts should strip away any glossy illusions about what will happen if corporate and union treasuries are turned into private campaign war chests.

Brandenburg goes on to compare the arguments made in both cases, noting that former Solicitor General Ted Olson who argued on behalf of Caperton earlier this year at that time opined that “‘The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.’” Yesterday, Olson argued on behalf of Citizens United and opined that “with independent groups, ‘there is less of a threat of corruption because there is no quid pro quo.’”  Brandenburg notes that it is very difficult to square these positions and concludes by posing this chilling hypothetical:

[T]hree Americans in four believe campaign cash affects courtroom decisions. If the federal ban is struck down, similar state laws will be next.

If anyone wonders whether that will have a real-world effect, they should look at Caperton once more and ask this: What if Don Blankenship, the coal executive with litigation in West Virginia, hadn’t been forced to spend from his own pocket? What if he could have just cut a company check to underwrite an election? And what if an unwise ruling makes that the norm, not the exception?

As we wait for a decision in Citizens United, it might be a good time to think about how much worse the situation could become and to ask again why we continue to select judges by a process that requires them to raise campaign funds from individuals and entities likely to appear before them in the future.

Jeanette Krebs, editorial page editor of the Harrisburg Patriot-News, counts Merit Selection as a reform Pennsylvania needs.  In Sunday’s editorial, Krebs calls for a new constitutional convention, echoing former Governor Raymond Shafer’s words when he opened the last such convention in 1967:

“Today we meet with history. We meet in a time that demands heroic efforts if we are to conquer the complex challenges that lie before us and our children.”

Krebs offers a list of some key issues related to our system of governance that should be addressed:

[A]bolishing the lame duck session when lawmakers vote on bills after an election, and in some cases, right before they leave office. There is merit selection of judges, giving the state auditor general the ability to examine legislative finances, true campaign finance reform, tax reform, biennial budgeting.

She wisely notes that “In looking at these issues it is clear that past efforts are not adequate to meet present and future needs.”

PMC and PMCAction have not taken a position on whether Pennsylvania should hold a new constitutional convention, but we are certainly glad to see Merit Selection on a list of major reform issues the people of Pennsylvania need to address.

The Merit Selection hearing scheduled for next week in Pittsburgh has been postponed due to the legislature’s ongoing work on the state budget.  We will post new information as soon as the Courts Subcommittee of the House Judiciary Committee reschedules the hearing.

Jack Betts at This Old State offers a quick peek at next year’s judicial elections in North Carolina.  He notes that “N.C. Court of Appeals Judge Bob Hunter is announcing his plans today to run for the N.C. Supreme Court next year.”  What’s interesting is that he has to further identify the candidate:

There may be some confusion in this race because there are two Bob Hunters on the N.C. Court of Appeals. The Bob Hunter running for Supreme Court is Robert C. “Bob” Hunter, who is a Democrat from McDowell County. The other is Robert N. “Bob” Hunter, a Republican from Greensboro in Guilford County who was elected to the Court of Appeals in the 2008 election.

Judicial elections often depend on name recognition, so making sure voters know which Bob is running is important.  But another source of confusion here is that the party identifications Betts uses to help distinguish the judges won’t be available to voters:

Of course, N.C. appellate judicial elections are non-partisan and ballots do not indicate which political party a candidate is allied with. But the parties themselves usually try to make sure voters know of their political inclinations.

So much for nonpartisan elections.

An interesting article in the Times Herald-Record [serving the Hudson Valley and the Catskills) contemplates  how the recent conviction of a former New York state judge for attempted bribery may be used to advance the cause of judicial selection reform.

Former New York Supreme Court Justice Thomas Spargo was being investigated for improper conduct during his election campaign.  With defense fees mounting, Spargo allegedly began soliciting lawyers practicing before him for contributions to his defense fund.  As the article explains, one such solicitation involved Spargo telling lawyer Bruce Blatchly that he oversaw several of Blatchly's pending cases and that a friend of Spargo's was presiding over Blatchly's own divorce: "The commission [on Judicial Conduct] didn’t see that as a solicitation. They saw it as a shakedown.”  Spargo was removed from the bench in 2006 and then faced federal charges of attempted extortion and bribery. He was convicted by a jury last week.

What does this have to do with judicial selection reform? Well, the article posits that Blatchly’s experience is very relevant to the problem of money in judicial elections:

There’s a school of thought that says similar “pay or suffer” or “pay, and reap the benefits” messages can be sent when you have judges running for office and their surrogates solicit for campaign contributions from lawyers who appear before those very same judges. Judges aren’t allowed to personally solicit for campaign contributions. They’re not even supposed to know who’s contributing to their campaigns through their campaign committees, although that information is readily available online and as one local judge once put it, “I’m not supposed to know, but you guys keep putting it in the paper.”

Certainly, extortion and bribery are very different from campaign fundraising. But as the article notes, “Bruce Blatchly’s testimony, about how it felt to be hit up for money on behalf of the same judge who had Blatchly’s fate in his hands,” has a certain resonance when it comes to the issue of judicial campaigns raising money from lawyers who are likely to appear before the judge in the future.