Jul 26 2010
Judicial Elections Send ‘Lousy Messages’
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.
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LM and Company. Thanks. Appreciated. Never taken for granted.
Ditto here.
Dan Hull, and more recently a number of Hull McGuire people, have worked on this issue for years. As someone who grew up by accident in merit-based U.S. jurisdictions and now lives in Europe, I think that it’s difficult to accept something that is different than what you are used to. Goes both ways. I understand.
I clerked in Pittsburgh years ago when I was a California law student–and still work on occasion with Hull McGuire. The firm had a few state court proceedings going on. I am still bothered almost every day by what I saw in Western Pennsylvania in this narrow sense: hardly anyone I met was embarrassed by the election regimes still in place in the state. Moreover, those who understood the issue–its taints and dangers– seemed, to me, to be afraid to even discuss it.
That was not the image I had of Pittsburghers before I lived there that one summer. It was as if the shot-and-a- beer town I had heard about over the years had turned into an uncourageous and emasculated place. Aversion to the issue was considered “smart”. Lawyers outside of HM got nervous when I brought it up. I thought the disinclination to even discuss it was, for lack of a better word, wimpy.
What happened to “Forthright Manly Pittsburgh”? And the rest of this hard-scrabble commonwealth?
The best and brightest elected Pennsylvania judges need to understand that popular elections–at the very least–taint them from the outset. It’s a strike against them “at birth”.
Pennsylvania lawyers need to “man up” about the issue–and make some noises. Lawyers and judges should and can lead.