judgesonmerit.org

In an editorial in today’s Philadelphia Daily News, PMC offers this review of the 2009 judicial elections:

Once again, judicial elections have left a bad taste in the mouth of Pennsylvania voters. It’s as if we all watched from the sidelines as some celebrities threw an expensive party, got into a fistfight and traded barbs in the tabloids the morning after. We were entertained for a few minutes and then wondered what it all had to with us.

This conclusion follows from what became a hard-fought election with candidates “going negative” in their advertising and arguing about the impact of campaign contributions.  Record sums were raised and spent, both by the candidates and third-parties, including the political parties and special interest political action committees.

It was enough to turn voters off, and it did: “There was a lot of noise leading up to Election Day, but voter turnout was a record low. In Philadelphia, it was appalling – less than 12 percent of registered voters.”

As the op-ed argues, this is a big problem, because  “choosing judges IS important, and their decisions DO affect our lives. Selecting judges deserves a process worthy of the importance of the decision.”  The solution: Merit Selection for the appellate courts.

The editorial board of the Reading Eagle makes a strong case to move to Merit Selection of judges in an editorial published today. The paper cites the record amount raised to date by Judge Jack Panella ($2.35 million), and that the total raised by both campaigns is expected to total over $4 million by the time final reports are due on February 1, 2010.

In fact, the numbers do not reflect the true amounts raised by the candidates. As we’ve reported on previously (here, here, and here, for example), the widely reported amounts raised in elections typically represent only money contributed directly to the campaigns of the candidates, and not third party and political party money spent directly on the election. Election observers will note that all of Judge Orie Melvin’s television commercials were paid for by the Republican Party, and thus represent a huge sum of money not reflected in her campaign’s reported contributions and expenditures (Panella’s ads were paid for directly by his campaign).

PMC’s Lynn Marks was quoted as saying why all of this is so troubling:

[T]he money comes from lawyers, law firms, unions and businesses who frequently litigate in the state courts. . . . These are not the types of records Pennsylvania should be proud of. But when you elect judges in partisan contests, the elections become more expensive, not less so.’”

The clincher:

Marks said nine of 10 Pennsylvanians polled by a state Supreme Court commission believe that judges are at least sometimes influenced by campaign contributions.

That’s no way to run an election for the state’s appellate court system. There has to be a better way, and there is. And it is nothing new. In fact former Gov. Tom Ridge, before he left office to join President George W. Bush’s Cabinet, urged the Pennsylvania Legislature to begin the move toward merit selection of statewide judges.”

There are currently bills before the state house and senate proposing a detailed plan for the selection of appellate judges based on merit. It’s time for the state to decisively take money out of the equation.

The Harrisburg Patriot-News featured an op-ed by PMC’s Lynn Marks and Shira Goodman this weekend. The op-ed opens with a question about the money spent in the election — millions by the candidates and perhaps millions more by political parties and other third-party special interests:

Only 20 percent of registered voters voted for a Supreme Court candidate. So, what did that money buy? Diminishing public confidence in our court system.

Marks and Goodman go on to explain the problems caused by the role of money in the electoral process and the inability of the recusal system to address these problems.

Marks and Goodman conclude, “The solution to the problem of money and judges is to get money out of the judicial selection system. The only way to do that effectively is to change the way we pick appellate judges.”  They explain why other proposals, such as campaign finance reform or public financing, would not be as effective “because both maintain the role of money in the selection process.”

The real solution is Merit Selection.  “With a merit selection system, appellate court candidates don’t have to raise money from those who are likely to appear before them. This results in public confidence in the process and trust that the scales of justice are in balance. And, that, in the words of that Mastercard commercial, “is priceless.””

From our friends at Gavel Grab:

Former Wisconsin Justice Louis Butler Jr. . . . . nominated by President Obama to the federal bench in Wisconsin, was asked by a GOP senator at a confirmation hearing in Washington about his defeat in two elections for the state’s high court.”

We can only imagine the very slight smile that must have formed on the corner of Butler’s lips as he made this reply:

‘After 16 years on the bench, I may be a better judge than politician,’ replied Butler, according to an article in the Milwaukee Journal Sentinel.”

Butler was defeated last year in an ugly contest with then-Judge Michael Gableman, who now faces an ethics complaint accusing him of lying in a campaign ad aired against Butler.”

Some judges would no doubt make excellent and effective politicians, and some politicians would likely make fine judges. But we think using mere “electability” as the decisive factor in how we choose our judges leaves too much to chance, and gives too much weight to factors other than a candidate’s qualifications.  For choosing our judges, being a good politician should not be more important than being fair, impartial, and wise. Judges should be chosen on merit.

Pete DeCoursey, bureau chief at the influential news source Capitolwire, has come to the realization that electing judges just doesn’t make sense. After covering judicial elections for over a decade, this election, with all its negative ads and astronomical costs finally tipped the scales (no pun intended).

In a groundbreaking article last Thursday, DeCoursey asked “Where is the public value in Supreme Court elections?” We highlighted some very compelling arguments from that piece here.

On Monday morning, DeCoursey joined Bonita Hoke, executive director of the League of Women Voters of PA on Harrisburg’s WITF Smart Talk. When asked what made him change his mind, DeCoursey responded that because judges are restricted from discussing issues in depth (legally or tactically, whichever), the idea of voters being able to make informed decisions seems to be a fiction.

Heading further west, J. Daniel Hull, a prominent blogger and a partner at the Pittsburgh law firm Hull McGuire was quoted in the Wall Street Journal Law Blog about his call for voters in states with judicial elections to stay home. Why would he make such a plea?

Hull explained that judges are different than other government officials, and argued they should not be elected:

The popular election of state judges . . . gives the appearance of justice being ‘for sale’ . . . . State systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.”

The point: Judges should not have ‘constituents,’ i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to” dress that up.

Hull’s frustration is palpable:

American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect–and also poses risks–but it is far better than what most American states currently have in place. It’s time for American states to grow up.”

We agree that it is very difficult – if not impossible – to design a perfect judicial selection system.  And we know that it is not possible to take politics entirely out of the process of picking those who will serve on the bench. But it is possible to take money out of the judicial selection process and make qualifications the determining factor for who reaches the bench. This is what Merit Selection can accomplish.

Paul Carpenter of the Allentown Morning Call urges Pennsylvania voters to demand reform in the wake of this week’s judicial elections. Carpenter decries the tight control by the two major political parties over the judicial election process.  He also identifies the critical issue of money in judicial elections:

I am. . .  troubled by the main source of funding for virtually all judicial candidates in the two-party system. What sort of judges are we likely to have if they take most of their campaign funding from the very lawyers who plan to argue cases before them?

Carpenter notes that change will only come if the voters get angry and demand it. And he challenges the voters to do so:

If average citizens want to similarly flex muscles to bring reforms. . . they need to get just as angry and be just as vocal as they were in the pay raise scandal. . . .

People need to start demanding a shift to the merit selection of appellate judges, vowing to vote against any legislator who fails to work toward that goal.

Legislation is pending in both houses of the legislature to implement a Merit Selection system for the three statewide appellate courts.  Clearly, confidence in the current judicial elections system is low, as fewer voters than in past years turned out to vote this week.

Pennsylvanians should make their voices heard. As Carpenter notes, that’s the only way we will achieve much needed reform.

John Baer of the Philadelphia Daily News spoke to Marty Moss-Coane on Radio Times this morning (you can listen to it here – the interview with Baer starts at approximately 40 minutes in). Baer observed that the judicial elections were likely decided based on factors other than qualifications — factors like memorable slogans, a catchy name, or party affiliation. Especially with record low voter turnout (estimates show maybe 20% of registered voters showed up), these other factors can become all important.

Baer made reference to two particular ads: for Judge Judy Olson, an ad that said, “Vote for PA’s ‘Judge Judy.’” For Sally Mundy, “So remember – on Tuesday, vote for Mundy.”  Both candidates won. “These judicial races are a roll of the dice, and factors outside the qualifications of the candidates usually determine the outcome,” Baer said.

In addition to these whimsical factors, the nasty campaign ads from both candidates in the Supreme Court race (which will undoubtedly mark this election as having one of the worst tones in recent memory) may have played a big role.

This was an uncharacteristically nasty [Supreme Court race]. The irony is that both [candidates] were highly recommended by the PA bar, both currently sit on the Superior Court, both have pretty good judicial records. . . and yet they came out swinging like ward leaders. . . . It was really the kind of stuff you’d see in a local legislative race, not a Supreme Court race.”

Money and political parties, said Baer, were very important.

We’re one of only six states that elect judges at all levels, and these races are routinely fueled by the people most interested in the outcome – the trial lawyers, and the hard-core politicians. [Panella got a lot of money from the trial lawyers and] Orie Melvin got a lot of money from the Republican party, and a lot of help from her sister [Joan Orie], who happens to be the majority whip in the state senate.”

The obvious solution to removing or reducing irrelevant and random factors and making qualifications determine who reaches the bench is to select our judges based on merit. That, said Baer, will require the leaders of the state’s political parties to offer more than lip-service to the change.  We certainly hope that will be coming soon.

Last night, in the midst of furiously tweeting election returns, John Micek over at Capitol Ideas posted this “Exit Poll,” asking readers to identify how they decided who to vote for in the Supreme Court race.  Initially, we thought this was an amusing diversion as we awaited the election results. But now Micek is reporting the poll results:

Forty-one percent of respondents to a massively unscientific Capitol Ideas poll cited party affiliation as their reason for voting in the Supreme Court race, while 23 percent cited their records. Interestingly, an equal number credited what they read in the press and on the Web for swaying their decisions.

Party affiliation was the big explainer.  We’ve always known that voters turn to a few key factors in low turn-out elections where relevant information about the candidates is hard to get.  This admittedly unscientific poll confirms the role of party affiliation in voter decision-making.

The thing is, party affiliation really tells us nothing about whether someone is qualified to serve on the bench or will make a good judge or justice.  So, we’re relying on party politics to decide who will serve in what is supposed to be the apolitical, impartial branch of government.

There’s a better way to make these decisions.  Merit Selection of appellate court judges is the best way to get the most qualified, fair and impartial judges on the bench.

In today’s Philadelphia Daily News column, John Baer reviews the judicial election results and scratches his head about how we select our judges.

So, did people vote yesterday? According to Baer, “The low-profile court contests appeared to draw lower than normal court-race turnout; some experts projected a statewide figure below 20 percent.”  That’s certainly not a show of confidence in the judicial election process.

As Baer notes, Republican candidates did very well, winning at least six of seven appellate court seats. Baer goes on to note the continuing success of women from the Western part of the state.  As of this writing, women are poised to win at least five out of seven seats on the appellate courts, and a woman is in a close race for a sixth seat.

Baer wraps up the column with this important thought: “But the way we put judges on the bench? Who knows what kind of day it was for justice?”  Baer is not alone in worrying that the judicial election system — which seems driven by ballot position, party affiliation, gender and geography — is not the right way to select appellate court judges.  We just hope the people of Pennsylvania are now ready to start talking about a better way.

The votes are in. And the unofficial totals show that Joan Orie Melvin has been elected to the Supreme Court.  The top three vote-getters for the Superior Court vacancies were Judy Olson, Sallie Mundy, and Paula Ott. The returns for the fourth seat are still too close to call, with Anne Lazarus and Robert Colville in a tight race for the seat.  The two Commonwealth Court seats will be filled by Patricia McCullough and Kevin Brobson.  Results can be found at the Department of State’s Election page.  We’ll be posting about the election throughout the day, so check back.