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PMC Deputy Director Shira Goodman attended this week’s Georgetown Law-Aspen Institute conference focused on selecting judges in the wake of the Caperton and Citizens United decisions. Goodman reports that there were two clear messages: First, judicial elections are about to become even more expensive, partisan and divisive. The second and more optimistic message is that now is the time for judicial selection reform.

Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

Adam Liptak  reported yesterday on retired Supreme Court Justice Sandra Day O’Connor’s keynote address at a Georgetown law school conference devoted in part to last week’s divisive Supreme Court decision in Citizens United. O’Connor, a long-time opponent of electing judges, was clear in her criticism of the decision and its implications for judicial elections:

In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.

Judicial elections are already a problem. Now corporations and unions will be able to spend directly to help a particular judicial candidate get elected.

O’Connor has been vocal in her support of Merit Selection methods for selecting judges, emphasizing that electing judges compromises judicial independence.

O’Connor forecasted the ways in which special interests might cash in on these post-Citizens United allowances:

I think today we can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election, and maybe tobacco firms and energy companies have enough to win the next one. And if both sides unleash their campaign spending monies without restrictions, then I think mutually assured destruction is the most likely outcome.

PMC’s Deputy Director Shira Goodman attended the conference and will be posting her impressions.

In the wake of the Supreme Court’s 5-4 decision in Citizens United to allow corporations and unions to directly spend money in support of political candidates, much attention has been paid to the ruling’s implications on future presidential and legislative elections. Yet commentators have been slower to point out how the decision could effect judicial elections.

In Friday’s National Law Journal, Tony Mauro flagged the issue, quoting PMC’s Deputy Director Shira Goodman,

It’s like the Supreme Court said, ‘Let the money roll in.’

Justice at Stake’s Bert Brandenburg was also cited:

This ruling pours gasoline on the fire of special-interest money that has been overtaking judicial elections. Interest group spending imperils our right to impartial justice by pressuring judges to rule with one eye on big-money contributors.

Money influences politics. This is an unfortunate yet unavoidable reality. But the judiciary differs from the executive and legislative branches of government. Unlike a senator, a judge is not intended to represent specific constituencies. A judge must lend an impartial ear to any and all who come before her. Unfettered independent campaign expenditures from the very parties who may appear before the judge in court severely jeopardize this impartiality.

In effect, the Citizens United decision will only increase the flow of money into judicial elections, casting greater doubt on an already contentious process. How will litigants be confident appearing in court knowing that the opposing party spent thousands to get that judge elected?

They can’t. Judicial elections are inimical to judicial goals of fairness and should be abolished in favor of a merit selection method of selecting our appellate judges. The Supreme Court has all but mandated that money will continue to influence politics, but we must ensure that it does not infect our judiciary.

Rick Hasen, renowned election law scholar and author of the Election Law Blog, wrote on the New York Times Room for Debate blog yesterday that the Citizens United decision is Bad News for Judicial Elections.

Today’s decision casts . . . aside . . . the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).

This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases.

We completely agree. In fact, in PMC/PMCAction’s press release yesterday, we made a similar argument:

Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

The simple solution is to change the way we select our appellate judges, taking them out of the campaign business altogether. Even without the inevitable flood of corporate spending on elections to come, far too much money is being spent on judicial candidates from lawyers, businesses, and political parties – the very groups that appear in court the most. Judges should be selected based on judicial ability, as in a Merit Selection system, not based on campaigning or fundraising ability.

For other takes on what this decision may mean for judicial elections, see the American Judicature Society’s response here and the Justice at Stake coalition’s here.

Yesterday the Supreme Court issued its long-awaited opinion in the case of Citizens United v. Federal Election Commission, overturning two Court precedents and effectively striking down decades of law intended to keep corporate money from influencing elections. After yesterday’s ruling corporations and unions will be allowed to spend money from their treasuries to directly advocate for particular political candidates.

Here’s what the local papers had to say:

The Philadelphia Inquirer reported that the 5-4 decision proved a victory for the Court’s conservative bloc, who maintained that a ban on corporate spending violated the First Amendment right to free speech. Most democrats, including President Obama, condemned the decision. In his dissent, Justice Stevens warned that the ruling “threatens to undermine the integrity of elected institutions around the nation.”

In a separate article, the Inquirer focused on what the decision will mean for Pennsylvania. Pennsylvanians for Modern Courts’ Deputy Director Shira Goodman predicted that yesterday’s ruling will “open the floodgates to direct corporate and union spending in statewide judicial elections.”

The Post-Gazette noted that the decision likely will cause Pennsylvania to change its own laws to now permit private corporations to spend their own money on political campaigns. PMC warned of the negative implications the decision could have on judicial races, a point conspicuously absent from the Court’s majority opinion.

The Times Leader quoted Goodman as well, underscoring the worry that the additional influx of money could affect the impartiality of state judges: “Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.”

For a media round-up…

PMC and PMCAction released this press release today in response to the United States Supreme Court’s latest decision in Citizens United v. Federal Election Commission:

FOR IMMEDIATE RELEASE

Contact: Shira Goodman/Lynn Marks

Pennsylvanians for Modern Courts and PMCAction

(o) 215-569-1150; (m) 215-680-1163

goodman@pmconline.org

U.S. Supreme Court Lets the Money Roll In to Judicial Elections

Pennsylvanians for Modern Courts and PMCAction explain how new campaign finance decision will bring more money into statewide judicial elections

PHILADELPHIA (January 21, 2010) –  Pennsylvanians for Modern Courts (PMC) and PMCAction today predicted that the United States Supreme Court’s long-awaited decision in Citizens United v. Federal Election Commission will open the floodgates to direct corporate and union spending in statewide judicial elections.  The decision, focusing primarily on the right to free speech, grants corporations and unions a constitutional right to make independent expenditures in elections directly from their corporate coffers, without the need to establish separate political action committees to fundraise and spend money.  The decision invalidates the laws of Pennsylvania and 21 other states prohibiting such independent campaign expenditures. Shira Goodman, Deputy Director of PMC and PMCAction, explained, “It’s like the Supreme Court said ‘let the money roll in.’”

“But,” explained Goodman, “given Pennsylvania’s experience in the 2009 Supreme Court election, more money spent on getting judges on the bench is the last thing we need.”  According to a recent report by PMC, that election cost at least $4.5 million dollars, and when political party spending is factored in, likely several million more.

The public has been increasingly concerned about the role of money in judicial elections, worrying that justice might be for sale to the biggest campaign contributor or spender.  Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.  As Justice Stevens noted in his dissent (quoting the Justice At Stake amicus brief PMC joined), “At a time when concerns about the conduct of judicial elections have reached a fever pitch . . . the Court today unleashes the floodgates of corporate and union general treasury spending in these races.”

In recent years, judicial elections have become more like elections for other public offices, despite the fact that judges are different from legislators and executive officers.  Electing judges in expensive, partisan contests complete with negative ads, third-party spending, mass media campaigns and debates over “hot button” issues, makes it difficult to remember that judges are sworn to be impartial arbiters of the law.  Instead, people worry that popular opinion, personal bias, and the desire to please campaign contributors or supporters will sway judicial decision-making.  This is unacceptable, but it is the natural by-product of our electoral system. Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

“There is a simple solution,” said Goodman.  “Change the way we select appellate court judges.”  Merit Selection is a hybrid system that combines the best features of appointive and elective systems and adds a new component – an independent, bipartisan citizens’ nominating commission to screen and evaluate potential candidates for the bench.  The Governor nominates a candidate from the nominating commission’s list of the most qualified, and that candidate is subject to Senate confirmation.  After an initial four-year term (and every ten years thereafter), a judge would stand before the public in a nonpartisan yes/no retention election.

Bills are currently pending in the Pennsylvania legislature to implement a Merit Selection system for the three state-wide appellate courts.  Amending the constitution requires the legislature to pass the bills in two successive sessions.  Then, the people of Pennsylvanian would vote in a referendum on whether to change the way we select appellate judges.

As noted in the amicus brief in which PMC joined, “Courts can only be impartial if they are independent.  To ensure due process, judges must be able to make decisions without looking over their shoulder at wealthy donors [and supporters] whose cases they must decide.”  The Supreme Court today made that more difficult.  Pennsylvanians have the opportunity to make it much easier:  change the way our appellate judges reach the bench.  “PMC and PMCAction believe it’s time to let the people decide.”

Pennsylvanians for Modern Courts is a nonprofit, nonpartisan organization working to promote the reform of Pennsylvania’s judicial system.  www.pmconline.org.  PMCAction is an affiliated nonprofit, nonpartisan organization that lobbies for court reform initiatives. www. pmcaction.org. Blog: www.JudgesOnMerit.org.

Also responding to the decision are PMC coalition members Justice at Stake and American Judicature Society (pdf).

In today’s San Antonio Current, local attorney and columnist Aaron Haas laments the use of judicial elections as a means of choosing judges in his home state. Haas recounts instances of judicial incompetence he has encountered while practicing and suggests that this, in part, may be a result of what he sees as a backwards system.

When the candidates are simply names on a ballot, the election will be determined more by money, organization, style, and attitude, than by any of the qualities we actually want in judges. Our antiquated system of choosing judges is a relic of a previous time, but its consequences today are all too real.

Haas may as well have been describing the current state of affairs in our own Pennsylvania. With at least $4.5 million (and probably much more once political party spending is accounted for) spent in the latest Supreme Court election, the effect of money in judicial elections is undeniable. But for those millions spent, mainly on advertising, little concrete information about the candidates was readily available to the public.

While there are many excellent, well-qualified judges on the bench, they are there despite the current system, not because of it. Elections are simply not designed to find the most qualified, fair and impartial judges.

By switching to Merit Selection for the appellate courts, Pennsylvanians could be assured that the judges deciding their cases reached the bench because they possessed the right qualifications and not because of campaign donations or clever campaign ads.

The Wisconsin Supreme Court has proposed an order ruling that judges can’t be forced to recuse themselves from hearing a case solely on account of having received a campaign contribution from one of the litigants. The order offers a valid argument supporting this rule:

Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity. It would have the effect of discouraging ‘the broadest possible participation in financing campaigns by all citizens of the state’ through voluntary contributions . . . because it would deprive citizens who lawfully contribute to judicial campaigns, whether individually or through an organization, of access to the judges they help elect . . . .

Can’t deny that – it’s certainly a problem.

The problem is, not disqualifying a judge who receives money from a litigant creates an even worse impression: that justice can be bought. In no other country can a litigant give money to a judge without committing bribery (the US is the only country with jurisdictions that elect appellate judges). Of course we are not equating contributing to a judicial campaign with an act of bribery, but it sure may feel that way to a litigant who did not contribute a hefty sum to the judge when her opponent did.

There is a profoundly elegant solution to this otherwise intractable mind-twister. Stop electing judges. There, that was easy.

Incidentally, the article points out that the order comes at a time when the court is being slammed with requests that Justice Michael Gabelman recuse himself from all criminal cases because of statements he made during his campaign that basically equated defending accused criminals with supporting crime. The truthiness of those claims were almost grounds for having Gabelman removed from the court altogether. Race-to-the-bottom campaign statements are just another reason why judges don’t belong in elections.

HT: How Appealing

Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom.

-Dr. Martin Luther King, Jr.

Today we remember Dr. King’s life and his unfaltering dedication to service in the face of extreme adversity. His memory inspires us to continue to work for change even when the challenges appear great.

A recent report by the nonprofit, nonpartisan National Institute for Money in State Politics shows that money and incumbency were the two largest factors in determining the results of judicial elections.  Candidates running in partisan elections, where contenders are backed by political parties, averaged as much as triple the money raised by those running in non-partisan or retention elections

The study reinforces what has long been known to critics of Pennsylvania’s own system of electing judges in partisan contests.  Namely, that money plays an overly-determinative role in judicial elections.  Oftentimes this money comes in the form of campaign donations from individuals who may subsequently appear before the elected judge.

Incidentally, the Institute study comes on the heels of a report by PMC  on the record amounts spent in the most recent Supreme Court race. The election cost at least $4.5 million and possibly more than twice that when all of the political party spending is accounted for.

Fundraising prowess weighs heavily on a candidate’ s ability to win an election, and may add some value to the consideration of a political candidate, but should bear little on one’s capacity to be a fair and effective judge.   A switch to Merit Selection would eliminate the influence of money on judicial selection and shift the focus back to finding the most qualified individuals for the job.