Archive for February, 2010

Feb 25 2010

JSPAN Endorses Merit Selection Plan for Pennsylvania Appellate Judges

Published by under Merit Selection

The Jewish Social Policy Action Network (JSPAN) announced yesterday that it is officially endorsing a change to the Pennsylvania Constitution that would provide for merit selection of appellate judges in the commonwealth. The full text of the resolution is below:

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JEWISH SOCIAL POLICY ACTION NETWORK

RESOLUTION ON MERIT SELECTION OF JUDGES

Pennsylvania is one of a few states that choose all their judges in political elections.

Races for election to the appellate courts – the Supreme Court, Superior Court and Commonwealth Court – are statewide efforts requiring large sums of money, sometimes running into millions of dollars.  Candidates seek endorsements from the political parties in each county, and also donations that typically come from lawyers who may appear before them after they are elected. Candidates lose the appearance of independence in the process.  The recent Supreme Court decision in Citizens United v. Federal Election Commission may be extended to state races, introducing corporate funding and even more potential for the real or apparent compromise of judicial candidates.

Despite the endorsements, spending and campaigning, few voters other than lawyers know much about the individual candidates or their qualifications.

Only the most qualified individuals – based on legal skill, experience, temperament and reputation for fairness, impartiality and independence – should become judges.  The system for selection of judges needs to focus on that goal.

JSPAN endorses changing the state constitution to provide for the merit selection of judges of our appellate courts through a process that avoids the need for political endorsements, campaigning or major fund raising by the candidates.

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Feb 24 2010

Electing Judges is “Fishy”

Published by under Merit Selection

Dan Hull over at What About Paris offers some interesting thoughts on why states should give up on electing judges and make the switch to Merit Selection. The bottom line:

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 notes that the very fact that states need campaign contribution laws to regulate judicial campaigns sends two clear – and very disturbing – messages to the public:

1. Judges, like mayors and congressmen, have “constituents”.

2. Justice, like real estate or widgets, is “for sale”.

We know that the public is very concerned about this already.  And Pennsylvania’s most recent Supreme Court election in which two candidates raised nearly $4.67 million isn’t doing anything to ease those concerns.  Indeed, even the candidates themselves expressed concern that the fundraising arms raise made it seem that justice is for sale. And if sitting judges (as both candidates were) are so concerned, that certainly doesn’t send the message that the public has nothing to worry about.

Hull offers this colorful but thought-provoking comment:

We appreciate that many of the some 10,000 elected American judges were excellent lawyers, and that as jurists they do first-rate, honest, exemplary, and often inspiring work. We have indeed stayed loose and open-minded on this subject. Three or four of our friends are former elected state judges. We say hello to them in public–and once even had one to dinner. We would probably not object too strongly if one of our sons or daughters very briefly dated one.

But elected benches are by nature glaringly “fishy” (i.e., “…dang, Nadine, the campaign money to the judge last year…just don’t seem right…the dog don’t hunt…”) to even the most casual observer in the Midwest or South, and wherever else American horse sense abounds.

His solution is one we whole-heartedly endorse for the appellate courts of Pennsylvania: Merit Selection.

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Feb 22 2010

Bill Moyers Journal spotlights Judicial Elections, Pennsylvania

The problems with Pennsylvania’s judicial elections took a national spotlight this week. The Friday night primetime PBS news show “Bill Moyers Journal” was devoted this past week to the question we’ve been asking for a long time:

How would you feel if you were in court and knew that the opposing lawyer [or party] had contributed money to the judge’s campaign fund?

The show’s response to the question posed sends a grave warning to the citizens of Pennsylvania and of other states that elect judges:

This is not an improbable hypothetical question, but could be a commonplace occurrence in the . . states where judges must raise money to campaign for their seats — often from people with business before the court.

Though many states have elected judges since their founding, in the past 30 years, judicial elections have morphed from low-key affairs to big money campaigns. From 1999-2008, judicial candidates raised $200.4 million, more than double the $85.4 million raised in the previous decade (1989-1998).

Because of the costs of running such a campaign, critics contend that judges have had to become politicians and fundraisers rather than jurists.

Friday’s show discusses the expected impact the recent Citizens United decision will have on judicial elections, and starts with a re-airing of the jaw-dropping 1999 investigation that focused on “justice for sale” in 3 states, Pennsylvania, Louisiana, and Texas. In what can best be described as tragic irony, the 1999 show began in Wilkes-Barre, Pennsylvania, ground-zero for the infamous Luzerne County courthouse scandal, and details the tortuous fundraising and campaign strategizing required to get a seat on the Luzerne County bench.

One of the judges whose campaign for election was profiled, Peter Paul Olszewski, was not retained for another term in the 2009 retention election, in large part because of his perceived association with Michael Conahan, now charged with masterminding the cash-for-kids scandal. The 1999 segment quoted a candidate who ended up losing her election:

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: True enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It’s a system that disturbs even the winning media consultant.

This system surely can only further erode the confidence of Luzerne County and Pennsylvania citizens who have seen first-hand the corrosive influence of money on judicial conduct.

The full transcript of Friday’s show is available in three parts, here, here and here. The latest numbers in Pennsylvania, which the show’s website attributed to Pennsylvanians for Modern Courts, reflect that a record amount of money was spent on the latest race for a seat on the Commonwealth’s highest court.

The show helps make apparent why electing judges is so problematic: unlike other public officials, judges have to resolve disputes between parties on a daily basis. The expectation is that the judges will be completely impartial and fair to both sides. But when they are forced to raise money to get their seats, and when that money inevitably comes in from the very parties that appear before those judges, the public has a hard time believing that the justice being delivered is not influenced by that money.

The solution other states have found, that we believe Pennsylvania needs to implement, is to select judges based on merit, not fundraising abilities or other factors unrelated to a candidate’s qualifications as an impartial jurist.

BILL MOYERS: Do you think that [Justice O’Connor’s] idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. . . . Nothing’s perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

The problem is not that voters can’t make good decisions; it’s that the process of electing judges is a system that values fundraising and campaigning above qualifiscations. And in that kind of system, it’s very hard to cut through the rhetoric and soundbytes to get the information you need to make a good decision.

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Feb 18 2010

Demise of Judicial Elections and Lessons from the Lonestar State

Published by under Merit Selection

Gavel Grab reported today on a story out of Texas predicting an end to judicial elections in the Lonestar state. Writing for the Texas Tribune, guest columnist David Schenck suggests that a recent trio of U.S. Supreme Court rulings undermine the perceived legitimacy of judicial elections:

Republican Party of Minnesota v. White (2002): First Amendment bars certain restrictions by states on what judicial candidates say while running for office.

Caperton v. Massey (2009): Due Process may forbid a judge from hearing a case where a litigant had “a significant and disproportional influence” (read: spent lots of money on that judge’s campaign).

Citizens United  v. FEC (2010): Corporations and Unions are now able to spend directly from their treasuries to make independent campaign expenditures in direct support or opposition of political candidates.

So what’s the problem? Read together, these cases highlight the irreconcilable contradictions inherent in judicial elections. Under White, judicial candidates may speak freely on issues that may later arise before them on the bench, tainting the perception of fair, impartial decision-making from the start. On the other hand, Caperton plainly lays out that even the appearance of impartiality due to large campaign contributions may violate due process. So money compromises the appearance of neutrality while the judge’s prior statements on the issues do not? But then most recently the Court opened the door to even more money in elections, including those for judges, as the Citizens United decision will result in new sources of cash in hotly contested judicial elections.

In poll after poll the public has expressed doubt over the propriety of judicial campaign contributions, and the apparent conflicting message from the highest court in the land does little to alleviate these concerns. One thing we know for sure is that the public is uncomfortable with the idea of future litigants spending money to get judges elected.

According to a poll conducted by judicial watchdog Justice at Stake, 84% of Americans believe that judges should not try cases involving parties who have contributed money to their campaigns. 74% feel that contributions influence judges’ decision-making.

Yet despite clear skepticism from the public, many states, including Pennsylvania, continue to elect their judges in contested partisan elections that require serious fundraising.

Pennsylvania should take note of Schenck’s prediction:

We should…move to some form of merit-based selection for our judiciary while there is still some hope of retaining the public’s confidence in what the founders designed to be the non-political branch of government.

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Feb 17 2010

What Wisconsin can learn from Pennsylvania

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

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Feb 15 2010

Take the Money and Run…for the PA Supreme Court

Published by under Judges,Merit Selection

The amount of money spent on last year’s state Supreme Court election is staggering. With at least $4.7 million raised, our own deputy director Shira Goodman noted the race to be the most expensive in history on a per-seat basis.

Today’s PA Law Weekly (subscription required) takes a look at exactly where all that money came from. While campaign finance reports indicate that defeated Democrat Jack Panella raised more than twice the amount of the victorious Joan Orie Melvin, including more than one million from the Philadelphia Trial Lawyers Association’s PAC, these figures don’t tell the full story.

A separate report compiled by the Campaign Media Analysis Group for Washington-based watchdog Justice at Stake reveals that the Republican Party sponsored an estimated $975,849 worth of television ads for Orie Melvin. The Republican party reported spending over $3 million on political campaign ads last year. The reports do not break down the spending on individual candidates, so exact numbers spent on each are difficult to determine. However, CMAG’s report, which was assembled by monitoring satellite feeds of campaign commercials and determining who paid for the ads according to their disclaimers and where they were aired, is believed to be a conservative calculation.

Charlie Hall of Justice at Stake is concerned that the voting public will not be able to truly see who is paying to support these judicial candidates.

It was a surprise to us that this third party that doesn’t appear on the ballot spent more than the candidate herself. I think this should be a big wake up call to Pennsylvania that the public should really insist on better transparency in campaign finance laws so they know who’s spending money in a campaign.

Yet more than greater transparency will be needed to combat the effect of politics on the bench. Due to the U.S. Supreme Court’s recent decision in Citizens United allowing corporations and unions to make direct expenditures to support or oppose political candidates, judicial campaigns are likely to become more and more like other political races even though the role of judges is very different from those in the other two branches.

Political science professor G. Terry Madonna worries that this “tendency will be to demean the judiciary [and] cause the public to have less confidence in the judiciary.”  In Pennsylvania, where faith in the courts has already been severely compromised due to recent scandals, such a development would only further weaken confidence in the system.

Judicial elections are no longer working for Pennsylvania. A change to a merit selection method of selecting our appellate judges is the best way faith can be restored.

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Feb 12 2010

Judges or Politicians — A Case of Mistaken Identity?

An editorial in the Washington Post makes some very good points about the trouble with electing judges.  Focused on the effort to expand Merit Selection to more judges in Maryland, the editorial is good reading for folks in any state where judges are elected — like here in Pennsylvania.

Elections, campaign contributions and the inevitable conflicts of interest they breed have no place in the selection of judges. For judges, drumming up campaign money — often from lawyers who appear before them — and marketing themselves undermines the perception of impartiality and can in practice lead to its corrosion.

These concerns of course become more pronounced as elections become more expensive, candidates raise more money from parties and lawyers who later appear before them in court, and third parties like political parties, corporations and unions unleash their own dollars to get their preferred candidates elected.

We expect judges to act differently from other public officials — to be faithful to the law without regard to popular opinion, political pressure, or campaign support.   Why, then, do we continue to use the same expensive, divisive, partisan electoral process to choose these very different officials?  The Washington Post offers a fine reason to stop doing so:

Judges are not — and should never be confused with — politicians. Insulating those who serve on the bench from the potentially corrosive influence of money and politics would help to avert cases of mistaken identity.

Merit Selection offers a fine way to avoid such confusion.  If we stop electing appellate court judges, cases of mistaken identity may still come before our courts but at least will no longer involve our judges.

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Feb 09 2010

Governor: “The time has clearly come. . .”

Governor Rendell just finished delivering his 2010-2011 budget address before the Pennsylvania General Assembly. In discussing his reform priorities, the Governor said:

[O]ur courts are faced with a serious credibility crisis. After all that has recently occurred, the time has clearly come to move a merit selection amendment through both chambers because it will have widespread public support and because it’s the right thing to do. These are important steps forward on the road to reform. Let’s enact the laws that restrict the ability of special interests to unduly impact our policies and manipulate our process. Let’s put Pennsylvanians first.

We hope the members of the House and Senate recognize that the time is NOW. We are in the wake of the very recent U.S. Supreme Court decision in Citizens United v. FEC which will undoubtedly give special interests even more ability to ensure their preferred judges are elected.

It is time to put Pennsylvanians first, as the Governor said, and select judges in a non-partisan, merit-based manner rather than in the expensive partisan elections we currently have which virtually ensure that judges hear cases from parties that have contributed to them directly.

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Feb 05 2010

Money From Lawyers Floods Court System

Published by under Judges,Merit Selection

The Wednesday front page of the Wall Street Journal featured a story on plaintiffs’ law firms making campaign contributions to political candidates with the intent of securing post-election government business. Here’s how it works: firms (including certain PA firms) give large amounts of money to state and local political candidates. If elected, those public officials tap those firms to represent state and local pension funds in shareholder class-action lawsuits. It’s all legal, but many in the legal world, including former Clinton administration Justice Department official Robert Litan, feel it smacks of “pay-to-play” political bargaining and creates an appearance of impropriety. Litan, now at the Brookings Institution said,

It shouldn’t be the case that plaintiffs’ lawyers should make contributions to public officials and turn around and get legal business from them. You want the best lawyer, not the one with the biggest campaign checkbook.

Many lawyers echo this sentiment. Said one D.C. partner, “There are certain places where, to be in the game, you have to donate…[but] we want to be chosen on merit, not because we contributed money.”

In Pennsylvania, where judges are chosen in contested partisan elections, a similar form of self-interested back-scratching takes place. Judicial candidates receive campaign contributions from (among others) lawyers and law firms—the same parties that are likely to come before that judge if he or she is elected. The result—real or perceived—is the diminishment of impartiality in our courtrooms.

The American Bar Association suggests that firms that have made campaign contributions should not accept “government assignments.” If this is the case, what then of Pennsylvania’s own practices? When judges have received money from litigants, it fosters doubt that he or she will be able to make a fair decision. 

Pennsylvanians cannot be fully confident in their judges unless money is taken out of the judicial selection process. The best way to accomplish this is to do away with judicial elections altogether in lieu of a merit selection process. The WSJ has highlighted the national problem of lawyer/law firm campaign donations. Pennsylvania should take note of how this issue affects our own system, and reevaluate the way in which our judges reach the bench.

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Feb 04 2010

A Clear Invitation to Judicial Reform

In an editorial in the Times Union (upstate New York), Abbe Gluck and Victor Kovner, members of the Board of New York’s Fund for Modern Courts argue that the U.S. Supreme Court’s decision in Citizens United should cause states to seriously consider replacing judicial elections with Merit Selection.  They write that opening the doors to greater financial participation in judicial elections by unions and corporations

[P]lainly jeopardizes the independence of much of our state judiciary. Plainly, the sense that judges may be beholden to financial donors — whether actual or even just perceived — undermines public confidence in our courts.

We share this concern and know that we are not alone in thinking that public perception is critical — in fact, when it comes to the courts, perception is basically reality.

The writers go on to explain:

Apart from any restraints on corporate contributions that may be adopted by Congress, it is up to individual states to close the gaping hole the court opened, and amend their state constitutions to end judicial elections. Whatever limits the Citizens United majority held that the federal Constitution imposes on corporate expenditures in judicial elections, nothing in the decision limits state governments from eliminating those elections in the first place.

This is a critical point.  The people have the right to choose the best way to select judges.  Nothing requires judicial elections.  As Justice O’Connor pointed out during the Georgetown Law-Aspen Institute Conference last week, our Founding Fathers placed great value on an independent judiciary and chose not to elect federal changes.  At that time, most states did not elect judges either.

The article concludes with an interesting note about Justice O’Connor and her unique insights into the issue of judicial selection: “It is no small detail that she is the only living U.S. Supreme Court justice who also has served as an elected state court judge.”  Justice O’Connor knows what it means to an elected judge, and she is urging states to reject judicial elections. Pennsylvanians should pay attention.

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