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Two federal appeals courts have struck down states laws prohibiting judicial candidates from directly soliciting campaign funds.  The Sixth and Eighth circuit courts have recently ruled that clauses in Kentucky and Minnesota, respectively, that prohibit this solicitation, violate the First Amendment.

The Sixth Circuit in Carey v. Wolnitzek, which examined a Kentucky solicitation canon explained that the distinction between indirect and direct solicitation may be nothing more than mere semantics:

Although the clause prevents judicial candidates from saying “please, give me a donation,” it does not prevent them from saying “thank you” for a donation given. The clause bars any solicitation, whether in a large group or small one, whether by letter or one on one, but it does not bar the candidate from learning how individuals responded to the committee’s solicitations. That omission suggests that the only interest at play is the impolitic interpersonal dynamics of a candidate’s request

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for money, not the more corrosive reality of who gives and how much. If the purported risk addressed by the clause is that the judge or candidate will treat donors and non-donors differently, it is knowing who contributed and who balked that makes the difference, not who asked for the contribution.

In the Wersal v. Sexton decision, which came down July 29, the Eighth Circuit examined a similar clause in Minnesota, and came to an analogous conclusion:

…restricting a candidates from personally soliciting funds does not address the state’s interest in a non-biased judiciary.

These decisions touch on a fundamental point: If states choose to elect judges in partisan elections in the same way as elected officials in other branches of government, the elections will include skyrocketing spending and partisan politics. Its time to find a better way – merit selection – to ensure our courts are not beholden to campaign contributions and the whims of the left or right.

A Sunday editorial in the Cleveland Plain Dealer explained that, due to a 6^th Circuit U.S. Court of Appeals ruling, Ohioans may be forced to rethink how the state selects its judges. This may prove to be a blessing in disguise for the Buckeye state.  

The 6^th Circuit struck down Kentucky rules prohibiting judicial candidates from advertising political party affiliations and directly soliciting voters for campaign contributions. Holding that such restrictions were a violation of the First Amendment, the 6^th Circuit decision has become part of an alarming trend making judicial elections more and more like elections for other public offices. The trouble is Ohio has rules on the books similar to those struck down in Kentucky.

Writing for the majority, Circuit Judge Jeffrey S. Sutton said,

While [party] political identification may be an unhelpful way to pick judges it assuredly beats other grounds, such as the all-too-familiar formula of running candidates with familiar or popular last names.

Judge Sutton’s argument makes a certain sense; voters are given woefully inadequate information about judicial candidates and often vote solely on name-recognition. But Judge Sutton’s suggestion that identifying political affiliation will be an improvement ignores the unique function of the

judiciary. The Third Branch was intended to remain above the political fray. But across the country, as safeguards such as those in Ohio and Kentucky are struck down, it will become increasingly difficult to prevent judicial elections from devolving into the hyper-politicized contests we see for other offices.

And perhaps, that is the point. States cannot have it both ways. An election is an election and no amount of safeguards can effectively keep the influence of politics from seeping in.    

Explains the Plain Dealer,

The constitutional issues flagged by the federal Appeals Court in the Kentucky case indicate that Ohio may someday find itself facing the same fork in the same road: Either the state gives its judicial candidates free rein — with, yes, a risk of wild electioneering — or the state finds a better way of choosing judges than the method it uses today.

For states concerned with upholding the integrity of the bench, the choice seems clear: find a better way. But they need not look far. Variations of Merit Selection, a hybrid of elective and appointive systems, are already in place in the majority of U.S. states. Pennsylvania legislators are currently considering such a system.

Can Ohio find a better way as well? It “shouldn’t be hard,” reads the editorial,

Almost any other method would be an improvement on the oft-criticized — and deservedly so — “name game.” 

A July 25th What About Clients? post called for an end to judicial elections, declaring, “it’s time for the States to grow up, and adopt systems of merit based appointments.” 

The post pointed out how judicial elections have led to a mischaracterization and perhaps even a negative transformation of the judicial role:  

State judicial systems with popularly-elected judges send two lousy messages: 

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

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

In a state like Pennsylvania, the idea of judges having “constituents” would not appear far off base. Judicial candidates in Pennsylvania campaign much like other politicians. Candidates travel around the state meeting with special interest groups and holding fundraising events. They air negative campaign ads intended to smear their opponents, and play up their own regional and ethnic identities. Perhaps most troubling of all, judicial candidates must run on a party ticket. Voters are left to question whether a “Republican Judge” or a “Democrat Judge” would in fact reach different

results in applying the rules of law.

Is justice for sale? To say definitively that it is, is to do a great dishonor to the scores of qualified and ethical judges that do serve on the Pennsylvania bench. But it’s not hard to see why the perception of impropriety is there, and question whether money does influence judicial decisionmaking. Judicial elections have become increasingly expensive, and judicial candidates fund their campaigns primarily by donations from potential litigants. In fact, a recent study showed that 60 percent of civil cases before the Pennsylvania Supreme Court involved a litigant, lawyer, or law firm that had previously contributed to the election campaign of at least one of the seated justices. In 32 percent of cases, an involved party had contributed to at least four of the six elected justices’ campaigns. How can a member of the public, or even a lawyer, feel confident that he or she is getting a fair bite of the apple knowing that the opposing side has given money to the judge?   

Judges should not have constituents. Justice should not be for sale. Yet judicial elections paint this picture. We agree with What About Clients?: it is time for Pennsylvania to “grow up” and adopt Merit Selection.

The Philadelphia Inquirer recently posted a letter to the editor written by a PMC intern in response to a Monday op-ed by Drew F. Cohen entitled, “Fine for Pennsylvania, but Iraq has standards.”

In the op-ed, Cohen pointed out that Iraq has rejected electing judges due to concerns of “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylva

nia.”

“Pennsylvania should not be using a system that has been rejected in Iraq,” the letter read.

Cohen “offered a clear and compelling explanation of the need to change the way Pennsylvania selects its appellate court judges from judicial elections to a merit selection system.”

Read the full letter to the editor here, and read our previous posting on the op-ed here.

A Nevada family court judge recently debunked a favorite target of merit selection critics – that merit selection will take away the voters’ rights to vote – by calling that contention “a myth,” and describing  merit selection as “real accountability,” he told the Las Vegas Review-Journal.

Under the Nevada plan, after the initial appointment, the judge would have to get a minimum of 55 percent of the vote in a retention election, a system he characterizes as “real accountability.”

Nevada is gearing up for November, when citizens will vote on whether to change the state constitution to set up a judicial appointment and retention system instead of thei

r current elections.

Hardy, who says he has always been in favor of merit selection, noted that it works against his personal interests. Under merit selection, he said:

I will have to receive 55 percent of the vote. That is real voter franchisement; That is real accountability when compared to our current system.

And while noting the spiraling costs of judicial elections and the public perception it creates, he stressed the fundamental problem with judicial elections:

The courtroom is a temple of justice. No person should enter a courtroom fearing that political and partisan influences predominate over the rule of law.

Speaking to the Utah State Bar on Saturday, U.S. Supreme Court Justice Clarence Thomas said it “could be a problem” to have judges selected through a political process.

But a “political process” is precisely what is in place for the state of Pennsylvania. Unlike the federal appointment system, or one of the various merit selection methods employed by other states, Pennsylvania chooses all of its judges in hotly contested partisan elections in which candidates are forced to raise money from potential litigants.

Justice Thomas is not the first Supreme Court justice to condemn the politicization of the judiciary. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O’Connor have both spoken out forcefully against the practice of judicial elections.

In March, Justice Ginsburg told a crowd at the National Association Meeting for Women Judges that given the opportunity, she would abolish judicial elections. “If t

here’s reform I would make, it would be that.”

Justice O’Connor has been outspoken as well, decrying the high price tag on judicial elections and the subsequent flow of political dollars into our state courts.

This is what she had to say about Pennsylvania:

Right now, Pennsylvanians are being shortchanged by the way their judges are chosen.  Judges running for election have to raise campaign contributions from individuals and organizations that appear before them in court.  In fact, the average cost to run for a state Supreme Court seat is staggering – reaching into the millions of dollars. 

Two things are true: (1) elections are inherently political and (2) judges are intended to operate outside of the political sphere. Yet we have judicial elections. This obvious and unfortunate mismatching exists to the detriment of Pennsylvania’s court users. It may not be possible to truly eradicate politics from any system. But merit selection provides a significant and undeniable step in that direction.

In an op-ed in the Philadelphia Inquirer, Drew F. Cohen argues that Pennsylvania must change the way we pick judges, and he offers an unlikely  model:  Iraq.  Cohen points to the issues that concerned the U.S. State Department when helping to form the Iraqi judiciary: “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylvania.”

We need not look so far away for a better judicial selection model.  Many states have been using Merit Selection for years to ensure a fair, qualified, impartial judiciary.  But Cohen’s comparison is certainly interesting.  In Iraq the High Judicial Council, an independent body, vets and appoints potential judges.  Once selected, the justices get a one-year probationary period.  If they pass a comprehensive performance review at the end of that year, they can be confirmed until the mandatory retirement age of 63.  Cohen compares this to the Merit Selection legislation pending in Harrisburg:  A 14-member citizens nominating commission would evaluate candidates and recommend the most highly qualified to the governor.  The governor wou

ld nominate from this list, and the nominee would be subject to Senate confirmation. If confirmed, the judge would serve a four-year term before standing for retention where Pennsylvanians would vote on whether the judge should serve a ten-year term.

Cohen notes that electing judges — and modern judicial elections in particular — don’t fit with our ideals of what courts and judges should be:

When the Declaration of Independence was signed on Chestnut Street, no state had seriously contemplated popular judicial elections. . . . Modern judicial elections are a far cry from the unbiased, dispassionate races originally envisioned by their supporters. Pennsylvanians are exposed to judicial campaigns replete with vitriolic attack ads, parasitic special-interest groups, and seven-figure fund-raising efforts, tarnishing the robes ultimately donned by the victors.

It seems Iraq has realized the special role judges play in a democracy:  judges must be faithful to the law, not to any particular constituency or campaign supporter. People must be confident that when they come to the courts for justice, the judges will be fair and impartial.
Cohen closes with this call to action:  “With Iraq’s judiciary leaving Pennsylvania’s in the rubble of yesteryear, it’s time for Harrisburg to make merit selection a reality.”

Friday’s Wisconsin State Journal editorial asks the question,

Shouldn’t a Supreme Court candidate’s legal skill and fairness be more important than ability to raise campaign money and win partisan support?

The answer seems clear. Yet, in the wake of the “Gableman affair,” in which the state Supreme Court deadlocked along party lines over a complaint accusing Justice Michael Gableman of lying about an opponent in a campaign ad, Wisconsinites are realizing that “legal skill and fairness” may be taking a back seat due to the state’s practice of electing its judges.

The increasingly partisan nature of Supreme Court elections is rapidly erasing the line that once insulated the judicial branch of government from the partisan politics of the legislative and executive

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branches.

The “Gableman affair” has been characterized as a tipping point.

From the campaign to the ethics case, politics shaped a process that should have been shaped by the law.

But there may be a silver lining. Many are now second-guessing the soundness of judicial elections. The Wisconsin State Journal, along with the Beloit Daily News and Milwaukee Journal Sentinel, has advocated for replacing this politically driven process with a system of merit selection. Merit Selection, in which candidates are evaluated based on their qualifications by a nonpartisan commission, would provide for greater transparency in the judicial selection process and ensure that the most fair and candidates reach the bench.

The editorial closes with an answer to its own question.

Wisconsin should restore public trust in the Supreme Court by shifting to merit selection of justices.

At her swearing in ceremony on Monday, Lorie Gildea, the newly appointed Chief Justice of the Minnesota Supreme Court decried the increasingly political nature of judicial elections in her state.

There are those who are working very hard to turn our judges into politicians and judicial campaigns into partisan bickering battles.

Like most states that continue to elect their judges, Minnesota’s judicial elections have become alarmingly more expensive in recent years. And as much of the money used to fund these races is raised by political parties, it is now nearly impossible to distinguish judicial elections from elections for other public offices. The problem is that judges, unlike other elected public off

icials like legislators or governors, are not intended to represent any one constituency.

The Chief Justice warned that partisan politics threatens the presumed impartiality of judicial decision-making.

It’s wrongheaded to insert political parties into our judicial selection process. We do not want judges deciding cases based on campaign contributions or party platforms.

We agree, and Pennsylvania faces the same trouble: Judicial elections have become so driven by politics that it is difficult for the public to feel confident that the courts have not succumbed as well. That is why Pennsylvania should do away with judicial elections entirely and switch to a merit selection form of judicial selection. This is the only way to restore public confidence in the justice system.

When asked, people say that they place a high value on qualified, fair and impartial judges.  One of the most compelling reasons to adopt  merit selection is that it is designed to ensure that the judges who preside over our courts maintain the highest degree of integrity and ethical behavior. New data from American Judicature Society support this.

The AJS study found that merit selected judges are disciplined less than justices who came to the bench through contested elections: Only 28.1 percent of the judges who were disciplined were merit selected, while the remaining 79.1 percent of disciplined judges were elected.

In addition, the study found that merit-selected judges are more likely to receive less severe sentences when they are disciplined than elected justices: While 58.5 percent of all disciplined judges received the least severe disciplinary action, 77.1 percent of merit-selected judges receive the least severe sanction.

Ultimately, the study concluded:

It is no dou

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bt the case that judicial merit selection systems… are more effective than others in screening applicants and identifying the most qualified [judicial] candidates. …These findings suggest that merit selection systems may produce fewer unfit judges than judicial elections.

The study examined a 15-year period in states in which judges are elected but where vacancies between elections are filled through a merit selection process.

Judicial quality was indicated by whether the justices complied with ethical standards of conduct. State codes of judicial conduct, which are enforced through judicial discipline systems, set rules regarding integrity and independence of courts, among other things. Although all 50 states have some form of judicial conduct system, the make-up of each and the grounds for which a judge may be called before it differ. In Pennsylvania, the system is divided into two entities: the Judicial Conduct Board and the Court of Judicial Discipline.

Click here to read about Pennsylvania’s judicial discipline system.