judgesonmerit.org

The Washington Post reports today that United States Supreme Court Justice Ruth Bader Ginsburg believes states should be prohibited from electing their state judges. Ginsburg expressed particular concern over the fundraising and specific campaign promises inherent in judicial elections. During a question-and-answer session at the National Association Meeting for Women Judges held in Washington D.C. on Thursday night Ginsburg said,

If there’s a reform I would make, it would be that.

For those states that continue to elect their judges, Ginsburg favors limits on the kind of political speech that judicial candidates can engage in during their campaigns.

Ginsburg noted that she was a dissenter when the court ruled in 2002 that states could not limit the kinds of issues that judicial candidates discussed. She called the majority’s ruling — that limits on political speech violate the Constitution — the “Gertrude Stein” decision: “An election is an election is an election.”

Justice Ginsburg is not the first U.S. Supreme Court justice to condemn judicial elections. Her former colleague, Justice Sandra Day O’Connor has been a vocal opponent of the process for many years and has made the issue a priority since her retirement in 2006.

Pennsylvanians should heed the advice of Justices Ginsburg and O’Connor and make the move  from judicial elections to a merit selection system of choosing appellate court judges. To do so, the state will be required to amend the Pennsylvania constitution. Legislation will need to pass twice consecutively in both the House and Senate before the question would be put to the public via a referendum vote. Legislation is currently pending that would begin this process.

After more than twenty years on the bench, Ohio Supreme Court Chief Justice Thomas Moyer will step down this year. Currently the longest serving chief justice in the United States, Moyer’s final order of business will be to attempt to change the way Ohioans select their state judges. Moyer has joined forces with both the Ohio bar and the League of Women Voters in pushing for this much-needed reform.

Like Pennsylvania, Ohio continues to elect its state judges in contested political elections fueled by campaign donations from contributors that may later appear before that judge in court. Moyer is advocating for a switch to a merit selection method of choosing judges that is similar (but not identical) to the one currently being considered in the Pennsylvania legislature. In both instances, a nominating commission would be tasked with screening potential nominees for the qualities most desired in a judge—fairness, experience, and judicial temperament.

While excellent judges may result from elections, the risks associated with judicial fundraising are ever-present. A Friday editorial out of Ohio considers Moyer’s argument:

…[M]ost voters believe campaign contributions influence decisions…The overriding goal is to break the influence of big money in judicial campaigns, helping to restore public confidence in the courts.

Moyer has encountered opposition from several of his fellow justices. He lamented that few judges are willing to criticize the avenue that brought them to the bench.

Yet that is not always the case. State judges across the nation have spoken out against judicial elections.  In the 2009 Pennsylvania Supreme Court election, both candidates criticized the fundraising element of the process. Many Pennsylvanians perceive such fundraising as “justice for sale.” The legitimacy of a court’s decision is only as good as the public perceives it to be. By continuing to elect our judges we do a disservice to both the citizens and the courts of our Commonwealth.

A Des Moines editorial expressed profound relief that a piece of legislation aimed to change the way judges are selected for the state Supreme Court—from their current method of merit selection—was ultimately tabled:

The proposed legislation came in response to Iowa’s recent Supreme Court decision legalizing gay marriage. Some in opposition to the ruling sought to rid the court of those justices they disagreed with by putting themselves in a position to elect new ones.

The ultimate goal is to prevent the Iowa Supreme Court from issuing rulings in cases. . . that might be unpopular with certain groups. That would, of course, be the end of an independent judiciary as envisioned in the Constitution, converting the courts into another political branch.

We rely on judges to apply the law as written and interpret newly arising legal questions based on both that law and the facts. Judges must be free to make difficult decisions, protected from the “changing winds of popular sentiment.”

This is not to say that the public has no recourse if it disagrees with an opinion. The law relied upon by the judge  may be changed. Come November there will be a ballot question allowing Iowans to vote on a convention to amend the state constitution. The political process provides the proper avenue for pursuing such changes; but the courts must remain impartial interpreters of the law as it stands.

The editorial states that Iowans would ultimately regret a change to their current system of merit selection:

Just ask those states where judicial elections can cost hundreds of millions of dollars, involve attack ads on television and put judicial “candidates” in the position of having to promise certain rulings in exchange for financial and/or electoral support.

States like Pennsylvania, which are all too familiar with the hefty price tags that accompany judicial elections ($4.6 raised in the 2009 Supreme Court race) and the fear that a campaign contributor may later appear before the elected judges in court and thus receive a favorable ruling.

Iowa did away with judicial elections in 1962. It’s high time Pennsylvania follow suit. Legislation is currently pending in the PA House and Senate to switch to merit selection of judges on the appellate level. The importance of this legislation cannot be overstated.

This month’s ABA Journal makes a strong historical argument for merit selection, noting that from the time of our nation’s conception the founding fathers contemplated the acute importance of having a fair and impartial judiciary. To this end the founders constructed the Constitution to provide for a separation of powers between the branches of government to ensure that the judiciary remained above the political fray.

Yet politics have consistently managed to creep in. Judicial elections, in which candidates run on partisan tickets and whose campaigns are largely supported by political parties, lawyers, and law firms are perhaps the best example. These donors are likely to appear before that subsequently elected judge in court, creating an appearance of bias, if not outright bias itself. The ABA points out that judicial elections are uniquely an American problem, and one that threatens the credibility of our government:

No other nation in the world elects judges, yet 39 states elect at least some of their judges. The financial and political pressures of running for office inevitably undermine the public perception of a prospective judge’s integrity and ultimately create distrust of the fairness of our judicial system.

The need for merit selection of judges has been exacerbated by the out-of-control nature of judicial election fundraising in the modern day political environment:

Between 2000 and 2007, state candidates raised $167.8 million—more than double the total raised throughout the entire 1990s. Merit-based appointments via transparent, diverse nominating commissions are the best means of ensuring fair and impartial courts. A judicial system that requires judges to solicit contributions from interests appearing before the court risks removing the blindfold from the eyes of Lady Justice.

Pennsylvania is leading the pack in judicial candidate spending for a single seat in a state Supreme Court election, with over $4.6 million raised. Pennsylvania should take a lesson from history, change to a system of merit selection, and demand that money be checked at the courthouse door.