judgesonmerit.org

As we reported earlier this month, an editorial in the Lancaster Intelligencer Journal/New Era “salute[d] the effort” to bring Merit Selection to the Pennsylvania appellate courts.  In response, PMC submitted a letter affirming that now is the time to act:

With the scandals in the Luzerne County court system, the continuing flow of special interest money into state court elections, and the likelihood that the U.S. Supreme Court will rule in October (in the Citizens United case) that corporations have a fundamental right to spend freely on state elections, it’s high time for a groundswell of Pennsylvania voices to let our leaders know we want our judges selected by their qualifications, not by a popularity contest and not by a fundraising arms race.

We hope Pennsylvanians will heed the call and make their voices heard.

While the judicial reform bills currently before the state legislature would replace elections with Merit Selection only for appellate-level judges, the upcoming local judicial elections — especially for Court of Common Pleas vacancies in Allegheny County and Philadelphia — demonstrate the political party gamesmanship that can define judicial elections and determine who reaches the bench.

In Pennsylvania, where elections are partisan, judicial candidates are listed by party affiliation.  This creates a risk that votes will go to a candidate based on party affiliation rather than on qualifications. In Allegheny County, according to the Pittsburgh Post-Gazette,  it is “commonly accepted that candidates generally need to be on the Democratic ticket to win.”  This is also true in Philadelphia County.  Candidates for the local courts can cross-file, that is, run on both the Republican and Democratic party tickets.

The Post-Gazette explains that two candidates who lost in the Democratic primary in May, but won spots on the Republican Party ticket, have decided to keep their names on the Republican ticket and simply not campaign.  This maneuver prevents the Republican Party from naming replacements for the two, and by not campaigning, the candidates virtually guarantee that the five who won in the Democratic primary will be elected onto the bench.  In essence, these two candidates are “taking one for the team,” and presumably will have their good sportsmanship remembered by the Democratic party in future elections.

Something similar happened in Philadelphia earlier this year.  As the Daily News reported:

[A]t an Aug. 25 party meeting, Republican leaders announced the withdrawal of the six judicial candidates on their ballot who had failed to also win the Democratic primary. And, they said, the GOP had decided to replace them on the Republican ballot with Democratic candidates who hadn’t won the Republican primary.

In other words, the Democratic team is now on both ballots and assured of victory.

So, here, too, political party maneuvering will determine who reaches the bench.  And this seems to be an example of the two competing parties actually working together — so much for partisan choice.

People who support the judicial election system often speak about the benefits of the democratic processes and letting the people choose.  But when political parties make ballot changes and have place holders on the ballot, do the voters really have a choice?  Aren’t the choices being made before anyone gets to the voting booth?

Is this really how we want to select judges?  Pennsylvania can do better than that.  While Merit Selection would not completely remove politics from the process (and may we be so bold as to posit that no system outside a dictatorship could), it would make a big improvement.

In our neighboring state of Ohio, Supreme Court justices are elected into office.  And with the Supreme Court making as many important decisions affecting political matters as it does, reports the Dayton Daily News, the design of the system itself creates a problem:

Some court observers say bias is inevitable when justices are elected by popular vote and receive campaign contributions that can run into the millions.

The retiring Chief Justice, Thomas Moyer, believes in the integrity of his Court and its decisions, but he acknowledged the public perception that “justice is for sale.”  The article quotes two well-known studies demonstrating that the perception is indeed wide-spread:

A 2008 American Bar Association poll found 79 percent of adults believed judges should not be allowed to accept money from “special interests.”

A 2002 poll sponsored by the Ohio League of Women Voters . . . found 83 percent of Ohio registered voters believe campaign contributions influence judges either to a great extent or somewhat.”

This trend is typical of a state that has popular elections of judges, especially one like Ohio, which from 1998-2008 spent over $20 million on judicial campaigns.  The paper cited Ohio as being the second largest spender on judicial elections in the last decade after Alabama (with $40.9 million raised).  Pennsylvania’s 2007 contest alone involved over $7.8 million in direct contributions to judicial candidates.

To combat the popular perception that judicial independence is threatened, Chief Justice Moyer is organizing a conference, along with the Ohio State Bar Association and the League of Women Voters of Ohio Education Fund, which he hopes will raise momentum for a change to Ohio’s electoral system.  We hope Justice O’Connor, who will be participating in the conference and is a fierce advocate of Merit Selection, can convince the state of the benefits of choosing judges on merit.

According to a report in the St. Louis Post-Dispatch, things are getting a bit confusing in Missouri.  We’ve reported before about ballot initiative efforts related to changing Missouri’s Merit Selection plan.  That effort focused on eliminating the nominating commission and giving the governor the power to appoint any one of his choosing.  Now, the same group behind that effort has filed a second ballot initiative that conflicts with the first and seeks to have voters directly elect judges.

It’s not clear why the second initiative has been filed, and the group behind the effort — ShowMe Better Courts — has not explained which new plan it would prefer.  In addition, as the Post-Dispatch reports, that proponents of the current selection system have criticized ShowMe Better Courts “for failing to point to any real problems with Missouri’s judicial system, in terms of bad judges or bad rulings.”

We think this muddled effort should raise the suspicions of the Missouri public.  Information and honest discussion are critical in reform efforts, but those pushing for change in Missouri won’t say what they really want.

Last week, former United States Supreme Court Justice Sandra Day O’Connor joined members of the North Carolina Association of Women Attorneys and South Carolina Women Lawyers Association for dinner and discussion. As the Briefcase (the blog of the South Carolina Women Lawyers Association) reports, there was a wide-ranging discussion, including Justice O’Connor’s criticism of judicial elections.  During the question and answer period, Justice O’Connor offered more straight talk on judicial selection:

Question 3. A request from a lawyer in the Charlotte area for advice on how to change a system of judicial elections to merit selection.

“Put together some citizens, preferably some with some clout,” Justice O’Connor said. Voters want to keep their right to vote, and they can, in a system of merit selection plus retention elections. “Get judges in there and see how they do. If you don’t like them, vote them out,” she said. “That’s how you sell it.”

That makes sense to us.  Retention is a key part of the currently pending Merit Selection proposals in Pennsylvania for just that reason. Thanks, Justice O’Connor.

Well, let’s clarify that. You should vote on November 3^rd, and you should do as much research as possible about the candidates for the seven appellate-level court seats up for grabs this year. We even offer information about the candidates on our website here.   But that is because we have to work with the system we have, and this is a system in serious need of change. Pennsylvania is  one of only six states in which all judges are elected in partisan contests. This means, they are nominated by political parties and run on a party ticket.

Popular elections don’t make sense for judges, and partisan elections make even less sense.  Judges must have a great degree of skill and knowledge to do their jobs, and their decisions often have important and far-reaching consequences.  But they are not political leaders.  By requiring judges to run for office, however, we inadvertently require them to act like political figures, and often end up making selection decisions based on how well they can campaign and raise campaign funds rather than on their skills, experience and qualifications.

Imagine the following scenario. Your neighbor is running for judge on your political party’s ticket. You help her campaign, distribute flyers, and raise money.  Down the street, or across town, your business rival does the same for a candidate on his political party’s ticket.  Your candidate loses.  You and your rival then get into a contract dispute.  You and your rival land in court, and your rival’s candidate, now judge (or justice) presides over the case.  Sound like fun?

Judges are meant to be impartial.  They are supposed to make objective evaluations of the law to ensure maximum fairness to both parties.  They are not supposed to have constituents nor favor anyone because of personal opinions, political support or campaign contributions.   Elections force judges to focus on the wrong things. There is a better way to put judges in office (click to see our proposal for a merit selection system of judges – bills are currently before the state house and senate).

Some disturbing news from the Daily Pennsylvanian, the student newspaper at Penn: there’s very little interest in the upcoming Pennsylvania elections.  Jordan Levine, president of Penn Democrats, explained:

“People will get involved in elections that they perceive will impact them. . . . [But] there are not too many seats up for grabs” in this one.

Peter Devine, Chairman of the College Republicans concurred: “None of [this year's] races match the excitement students had for last year’s presidential election.”

Of course, Pennsylvanians are electing 7 statewide appellate court judges this year, including a Supreme Court justice.   Decisions about who serves on these courts are very important and do have a serious impact on the lives of Pennsylvanians.

As we reported here last week, sleepy judicial elections aren’t good for anyone.  If people don’t know or don’t care that we are electing judges, why are we still doing it? There’s a better way.

An article in the Pittsburgh Tribune-Review offers a gloomy assessment about the upcoming judicial elections in Westmoreland County where voters are electing two new judges:

Look who’s talking about the upcoming election for two Westmoreland County judgeships.

Apparently nobody.

The disturbing evidence to support this conclusion: a scheduled candidate forum was canceled when two of the three candidates “said they weren’t interested.”  Why the lack of interest? They participated in a forum in advance of the primaries and it was recorded, so they claim it’s not necessary to do it again.  One candidate explained, “‘In a judicial campaign there are only so many questions you can ask.’”  Really, because it seems to us there’s a lot of things people might want to know about those who seek to become their judges.

Perhaps more troubling: another candidate claimed there was little public interest in having a candidate forum.  Choosing judges is a big responsibility; voters generally claim they want more information, not less.

Well, this is all very discouraging.  Two of three candidates and the “public” have determined it’s not necessary for voters to educate themselves in advance of the election.  Sleepy elections aren’t good for anyone, and they certainly don’t help voters make good decisions in the voting booth.  Maybe elections aren’t the right way to go about choosing judges.

An editorial in the Lancaster Intelligencer Journal/New Era “salute[s] the effort” to bring Merit Selection to the Pennsylvania appellate courts.  The editorial quotes former Supreme Court Justice Sandra Day O’Connor’s ongoing support of Merit Selection and notes: “O’Connor may be on to something. The current system – in Pennsylvania, anyway – is deeply flawed.”

The editorial enumerates several drawbacks to electing judges: campaign contributions from litigants and lawyers, the difficulty voters have in getting relevant information about the candidates and the consequent reliance on “superficial elements, such as ballot position, party affiliation, gender or home town, in deciding whom to vote for.”  Then comes the kicker, “Most of all, though, it’s about the money.”

Money and judicial selection just shouldn’t mix.  We need to get judges out of the fundraising business. Merit Selection is the system that can accomplish this.