judgesonmerit.org

An editorial in today’s Philadelphia Inquirer roundly endorses scrapping our state’s practice of judicial elections and making the much-needed switch to a merit selection system for choosing appellate court judges.

While many in Pennsylvania have long decried the inherent flaws and contradictions of a system that forces would-be judges to run in exorbitantly expensive, hotly-contested political races, more attention has been paid to the issue lately in part due to a recent study showing the high frequency by which contributors to judicial election campaigns later appear in court.

The Inquirer explains,

The nonpartisan American Judicature Society (AJS) reports that nearly two out of three civil cases decided by the Supreme Court in the last two years involved a litigant, lawyer, or law firm who had given money to one or more of the justices’ campaigns. That doesn’t even count giving by business, labor, and political groups.

Long before this study, most Pennsylvanians told pollsters that partisan judicial elections – awash in unrestricted campaign donations – risked creating the impression that justice is for sale. Last year, a two-way race for a seat on the court generated $4.7 million in political donations.

The study by the AJS “confirms Pennsylvanians’ concerns about the problematic role of money in judicial elections,” according to the statewide reform group Pennsylvanians for Modern Courts.

Legislation is currently pending in Harrisburg to allow the question of merit selection to be presented to the public in a referendum vote. The bill has the strong support of Governor Rendell, who has named merit selection as a top reform priority for his remaining time in office.

But it is what the people believe that truly matters. Our courts were designed to protect the citizenry of Pennsylvania and allow individuals a fair, neutral arena for which to bring their grievances. Now, that presumption of fairness and neutrality has been called into question and public confidence has been weakened. Merit selection provides the remedy.

Nothing less than citizens’ trust in the fairness of the state’s judicial system is at stake.

As a result of the recent Supreme Court Citizens United v. FEC, corporations, unions and other entities are now permitted to spend directly from their treasuries to support or oppose candidates in political races. The decision has appalled many who believe the ruling will negatively transform the electoral landscape by allowing a new wave of previously inaccessible money to flow into political campaigns. The Houston Chronicle reports,

Critics, including the high court liberal minority, decried the decision and predicted that the U.S. electoral process will soon be distorted by the injection of millions of dollars in corporate cash that will drown out individual voices and influence outcomes.

It appears these fears are already being realized in a Texas state representative primary race, where old guidelines regulating campaign advertising were scrapped in light of the Supreme Court’s decision. One candidate, the president of a real estate company, has dipped into the company’s coffers to finance a slew of negative attack ads against his opponent. Brandished with the tag, “political advertisement paid for by KDR Development, Corp.,” these ads would have, until recently, violated Texas law.

Much attention has been paid to the results Citizens United will have on legislative races. But what many have neglected to point out is how damaging this ruling could be for the already dismal system of judicial elections. Pennsylvania is one of the states that continues to elect their judges in these hotly contested, hugely expensive affairs. Now, the Supreme Court has all but added fuel to the fire.

The Texas race is just a small example of what is likely to become a massive problem:

In the brave new world of post-Citizens United, multi-million-dollar corporate media blitzes directed against opponents for either personal or political reasons could become the norm.

ABC27 in Harrisburg ran a story last night titled “Political Contributions to Statewide Justices Questioned,” focusing on the recent American Judicature Society finding a significant overlap between contributors to Pennsylvania Supreme Court justices’ election campaigns and lawyers, litigants, and law firms later appearing before those justices.

PMC’s Lynn Marks was featured in the story explaining that this creates the perception that justice is for sale.  She urged that it was time to get judges out of the fundraising business by enacting a Merit Selection system for the appellate courts.

Supreme Court Justice Michael Eakin argued that Merit Selection does not take politics out of the selection process.  Marks acknowledged that there is no perfect system but countered that under Merit Selection, people don’t have to worry whether their opponents or the opposing attorneys in court have contributed to the election campaigns of the presiding judges and justices.

According to yesterday’s Legal Intelligencer (subscription required), a new (and revised) study put out by the American Judicature Society has added fuel to the on-going debate in Pennsylvania over judicial elections. PMC released the results of the study in a press release last week, revealing the high frequency by which donors to Pennsylvania Supreme Court election campaigns later appear before the elected justices in court. In civil cases more than half of the litigants, lawyers or law firms had contributed to at least one of the justices’ campaigns and in many instances had contributed to the campaigns of more than one justice.

While the study did not attempt to prove that donations influenced a judge’s decision, Malia Reddick, the author of the study pointed out that “it does suggest that citizens and litigants may have reason to question the fairness and impartiality of the court’s decisions…”

Shira Goodman, deputy director of PMC expressed similar sentiments:

I think it gives you pause. How would you feel if you go to court and know someone on the other side donated to one of the justices? I might be concerned about that. We have a very small, kind of insular bar here. When you add the money in, it just doesn’t look good.

The study confirms what many in Pennsylvania already know. In fact, many state lawmakers and reform groups have already been working to get rid of judicial elections in favor of a merit selection process for appellate court judges. Governor Rendell included the issue in a list of reforms he intends to pursue during his last year in office. Legislation to effect such a change is currently pending in Harrisburg.

One of the sponsors of the bill, state Senator Jane Earll (R-Erie), says she is optimistic about the fate of the legislation. She noted that “every time I introduce the bill, it gets a little bit more support.”

Goodman asserts that it is more than just the possibility of unfair play that is at issue; even if the reality is benign, the fact that political contributions are made can raise suspicion.

You shouldn’t have to worry. You don’t have to worry about that in states where judges aren’t elected. You don’t have to worry about that in federal courts. It’s just not even a consideration. Here, it is.

PMC and PMCAction’s editorial appears in today’s Legal Intelligencer (subscription required), outlining why a change from judicial elections to a merit selection process for Pennsylvania’s selection of appellate court judges is important and why the time to begin the steps to undertake such a change is now.

Executive director Lynn Marks and deputy director Shira Goodman report that judicial elections, fueled largely by donations from law firms, lawyers, businesses, unions and political parties, are becoming increasingly expensive. Pennsylvania just completed its most expensive Supreme Court election to date.

In addition, many of those who contribute to judicial campaigns are likely to later appear in court.

A new study by the nonpartisan, nonprofit American Judicature Society, or AJS, found that in 82 civil cases decided by the Pennsylvania Supreme Court in 2008 and 2009, 60 percent involved a party, lawyer, or law firm that had contributed to the election campaign of at least one of the sitting justices. Moreover, in nearly 32 percent of the cases, one participant (a party, lawyer, or law firm) had contributed to at least four of the six elected justices. (The seventh justice had been appointed to fill an interim vacancy.)

Marks and Goodman note that this leads to the public perception that not all parties will be given an equal opportunity in court.

As a 2009 USA Today /Gallup poll confirmed, the public is very concerned about the potential influence of campaign contributions on judicial decision-making: 89 percent of respondents called the influence of campaign contributions on judges’ rulings “a problem.” More than 90 percent of the 1,027 adults surveyed said judges should not decide cases that involve a campaign contributor.

While public tolerance for this system may be waning, changing the way we select our judges requires changing the state constitution. Marks and Goodman explain,

It is — and should be — difficult to amend the Pennsylvania constitution. Doing so requires passage of an amendment by both houses of the legislature in two successive two-year sessions. Following that, the public votes in a referendum to approve or reject the proposed amendment. This is a lengthy process that affords ample time and opportunity for debate, and concludes with a final vote by the people of the state. The hurdles involved in this process demonstrate that amending the constitution should not be undertaken lightly.

But the process exists for a reason, and is used when the people find that something needs to be changed to improve the functioning of our commonwealth. We believe that our system of electing appellate judges in expensive, divisive, partisan contests is not the best way to ensure that the most qualified, fair, honest and impartial judges reach the appellate bench. A diverse coalition shares this view, and studies demonstrate increasing public concern about the effect of campaign money on judicial decisonmaking. Judicial selection is an issue that is ripe for reconsideration by the people of Pennsylvania.

KYW 1060 reported on the American Judicature Society report on the degree of overlap between contributors to the campaigns of Pennsylvania Supreme Court justices and those appearing before those justices in Court.

The news report quoted PMC’s Lynn Marks explaining that although the report does not draw any conclusions about whether the contributions influenced judicial decisionmaking, “Each dollar raised and spent raises doubts in the public’s mind about whether or not justice is for sale.”

The report quoted Pennsylvania’s Chief Justice Castille’s response:

‘I actually share that opinion to some degree myself. . . . The money does have an outward appearance of a lack of fairness in the system.’ Castille says that’s one of the drawbacks to elected judges.

We very much agree with this assessment and hope Pennsylvanians will have the opportunity to determine whether to change how we select appellate court judges.

PMC has  announced that a revised study by the American Judicature Society (AJS) confirms that there is significant overlap between contributors to the election campaigns of Pennsylvanian Supreme Court justices and litigants, lawyers and  law firms appearing before the Pennsylvania Supreme Court.  (Due to an error that resulted in some court cases being counted more than once, AJS reevaluated all of the data.)

According to the revised AJS study, which evaluated 82 civil cases decided by the Pennsylvania Supreme Court in 2008-09 (during which there were six elected justices and one who had been appointed to fill an interim vacancy):

• In 60% of the cases, at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.

• In nearly one-third of the cases (32%) a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.  This represents a majority of the court.

PMC’s Lynn Marks explained that the AJS study does not attempt to determine whether campaign contributors received more favorable rulings.  Marks noted, however, that “When one party to a case has contributed to a member of the Court deciding that case, it creates an appearance of influence that causes citizens to doubt the fairness of our judicial system.”

Legislation is currently pending in the Pennsylvania legislature to amend the constitution to implement Merit Selection for appellate court judges. “Merit Selection takes money out of the selection process and ensures that we select judges based on their qualifications and experience, not the size of campaign war chests,” concluded PMC’s Marks.

ABC reported yesterday on a soon-to-be released study revealing a staggering increase in the amounts of money flowing into state judicial elections in recent years. The study, conducted by the Brennan Center for Justice at NYU School of Law and Justice at Stake, shows that within the past decade candidates for state judgeships raised more than $206 million, more than double what was raised in the 1990s.

“State judicial elections have been transformed,” the report says, and the money involved has created “a grave and growing challenge to the impartiality of our nation’s courts.”

The U.S. Supreme Court ruled in Caperton v. Massey in 2002 that in extreme circumstances, a judge must step down from hearing a case involving a donor-litigant. In Caperton one of the parties had spent over $3.5 million in ads to help elect the judge. The Court held that even the appearance of bias may be enough to violate due process rights.

Caperton, however, has provided little guidance to lower courts. Parties likely to appear in court—law firms, lawyers, business organizations, unions and others—continue to invest great amounts in judicial candidates’ campaigns.

Alabama provides a telling example,

[Supreme Court Justice Michael F.] Bolin is seeking reelection to the bench after first being elected in 2004 with more than $1 million in financial support from business groups, according to the National Institute on Money in State Politics. Alabama campaigns have been exceptionally contentious in recent years, as business interests and trial lawyers have squared off behind opposing candidates for the state supreme court. A 2003 study by the Institute found that out of 1,424 court cases they examined, 904 of them — or 63 percent — involved a party or attorney who had made a contribution to a Supreme Court Justice before that Justice ruled on the contributor’s case.

Alabama is not anomaly. Similar battles have been waged across the nation, including here in Pennsylvania. Pennsylvania’s 2009 Supreme Court election proved to be the most expensive single-seat judicial race in the country, with scads of money coming from potential litigants. As former Justice Sandra Day O’Connor expressed to a group of Georgetown law students last month, the amount of money flowing into these contests has become “a threat to judicial independence.”

Gavel Grab alerted us to an editorial in today’s Santa Fe New Mexican criticizing the state’s use of judicial elections. New Mexico employs a hybrid system of judicial selection in which the governor appoints judges to fill vacancies from a list of candidates approved by a merit-selection board; once on the bench those judges must defend their seats in partisan contests in the next general election. The appointee’s challenger need not be approved by the merit board. If the appointee loses, the newly-elected judge serves the remainder of his or her term. Whichever way they reach the bench initially, all judges then face periodic retention elections.

Maintaining that New Mexico runs the risk of losing some of its most qualified judges, the editorial points out,

They had to pass a merit-selection board before the governor appointed them — but now they’re sitting ducks for political opportunists who might or might not have qualified for merit selection.

The editorial articulates some of the most troubling and consistent problems with judicial elections—campaign fundraising and inappropriate political influence.

The judiciary, already held to canons of ethics as lawyers, hew to a higher standard — yet can come under a shadow when judges must raise campaign contributions and round up party support to fend off electoral opposition. And pity the poor merit appointee who dares to hold himself or herself above politics while challengers cut backroom deals. Who’s got the better chance in the primary — where, in Democrat-heavy New Mexico, the contest is usually decided?

Elections may be fitting, and even desirable, for other political branches of government. But elections are ill-suited to the unique function of the courts. Judges should not be perceived as beholden to particular interests or constituency groups, be them campaign contributors or political parties. Judges best maintain their judicial independence by staying out of the political circus. But elections force them right out into the ring.

A new survey indicates that Washington voters are open to a merit selection system for selecting their state judges. In 2008, a randomly-selected sampling of 1,185 voters was asked to respond to a questionnaire about their current system of electing judges and a hypothetical system of merit selection. This month’s Washington State Bar News expressed surprise at the results:

…[I]t has been a widely held belief among people who have followed politics in the Evergreen State that “Washingtonians would never give up their right to elect judges.” Given the evidence of citizen interest in and support for a merit selection process documented in this survey, it may be time to set aside this long-established belief and adopt a stance more open to the possibility of change in how the state’s judges ought to be selected.

In the questionnaire, merit selection was described as the “commission system method” in which a broad-based nominating commission would submit names of candidates to the governor. Those appointed would face retention elections in which the public could decide whether a judge would remain on the bench. (Note:  there are slight differences between this method and the proposed bills currently in the Pennsylvania House and Senate. PA’s legislation requires the nomination to be affirmed by a Senate vote.) In response to this description, 61% of respondents believed the proposal to be “good” or “very good.”

Respondents to the survey were also asked whether they viewed certain aspects of the current judicial election system in a positive or negative light.

Advertising by special-interest groups… and the need for candidates to raise money were viewed by many citizens as negatively affecting the court system.

Such feelings regarding the pitfalls of judicial elections are not unique to Washington. Reformers in Pennsylvania have long been calling for a switch to merit selection. Change can be difficult. But when presented with the possibility of a change and not mere acceptance of the status quo, Washingtonians have expressed an open-mindedness that should be commended. Pennsylvanians should be given the opportunity to consider the change for themselves.