judgesonmerit.org

If we were to jump “down the rabbit hole” and imagine if Supreme Court justices were picked in the same way as Pennsylvania appellate court judges:

Elena Kagan wouldn’t be doing a head count of senators whose votes she needs for confirmation; she’d be engaged in a mega-million-dollar election campaign against her opponents. That’s how we do it in Pennsylvania: subject all our state judicial candidates to partisan elections.

The recent U.S. Supreme Court decision in Citizens United, which allows corporations and unions to be limitless in their expenditures to help candidates (including judges) get elected, is only the latest evidence of the need for Merit Selection of judges, writes John H. Kennedy, a professor of communications at La Salle University and a former legal affairs reporter for The Boston Globe, in the Pittsburgh Post-Gazette.

There is no question that the spending in the most recent Pennsylvania Supreme Court election rose to astronomical heights: The two candidates spent a combined $4.7 million in their pursuit of a spot on the bench. Pennsylvanians should not be speculating who in the courtroom has given what amount of money to the sitting judges – whether or not this affects the judges in reality.

Now, the Citizens United decision has opened the floodgates on judicial election spending, and is “bound to magnify the flaws of judicial elections and further breed public cynicism about the courts.”

Judicial elections, he writes, already lead to a “jaw-dropping conflict of interest,” and points to the allegations that recently elected Justice Orie Melvin’s sisters improperly aided her campaign.

Conflicts of interest in judicial elections are distinct from other public officials races because, “Unlike presidents, governors, senators and mayors, judges are not supposed to represent constituencies and fulfill campaign promises.”

This forces our judges to shed their black judicial robe during campaigns and to instead don the Republican red or Democrat blue. Whether or not judges feel bound to these “primary colors” once they get on the bench, studies have shown the perception certainly perpetuates.

The piece quotes a recent PMC survey finding that three-quarters of respondents believe campaign contributions have an impact on judicial decision-making.

Shira J. Goodman, deputy director of Pennsylvanians for Modern Courts, who is quoted in the piece, agrees:

If the public doesn’t have confidence that the courts are fair and impartial, we have nothing.

Ninety-three percent of Pennsylvanians want an opportunity to vote on a constitutional amendment to change the way we vote for our judges. We haven’t had that opportunity for 40 years.  Perhaps it’s time, Kennedy writes:

Down the rabbit hole, anything goes. But up on the bench, fund-raising prowess and name recognition should not be on par with the qualities we all value in judges — independence, fairness and respect for the law.

Wisconsin’s largest newspaper, the Milwaukee Journal-Sentinel, is calling for the state legislature to explore selecting justices instead of electing them in light of a recent Supreme Court deadlock over whether to sanction current Justice Michael Gableman for lying in his campaign:

And, still, the 3-3 deadlock on whether to sanction Justice Michael Gableman for a campaign lie does send a message: Supreme Court justices are mere politicians, allowed to lie without consequence to secure plum jobs. And this prompts the question: Why should voters believe that the mere act of donning black robes will suddenly transform any justice who lies to get elected into the picture of legal impartiality and propriety?

Gableman’s campaign accused his opponent, a public defender, of finding a “loophole” in a law that allowed a child rapist to be released and subsequently rape again. The problem, the Journal-Sentinel says, is that the public defender didn’t. “It’s a lie.”

The newspaper, which has pushed for judicial reform in other contexts in the past, (for an example, click here) continues:

Appointing Supreme Court justices rather than electing them can more effectively distance these candidates from the corrupting influences of politicking, raising money and appearing to all the world as just another layer of partisan politicians, except with black robes.

Read the full editorial here.

During his campaign for the Wisconsin Supreme Court, Justice Michael Gableman ran television ads that were misleading at best and ethically suspect at worst. In response to an ethics complaint against the justice, the remaining members of the state Supreme Court split 3-3 on whether Gableman should be disciplined.

The case has the Wisconsin State Journal asking why the state “continues to subject its top judges to ugly, money-fueled, increasingly partisan campaigns that turn them into the worst of politicians?”

The editorial explains how judicial elections have failed Wisconsin:

Our judges in Wisconsin – especially those on our highest court – are supposed to be independent and impartial. They’re supposed to be above mud-slinging politics.

But elections have plunged them into the mud pit where they raise huge amounts of money – including from individuals and groups who come before the court, setting up conflicts of interest.

Reform initiatives are unlikely to provide an answer:

Efforts to try to limit the money spent on judicial elections may be noble. But those efforts have failed because the nation’s high court has determined that money is speech, protected by the First Amendment.

The paper suggests that Wisconsin change the way it selects judges from elections to a merit selection system, a path that roughly half the states in this country have already taken.

It would restore trust in and honor for our state’s highest court.

Yesterday Solicitor General Elena Kagan completed her third and final day of questioning before the Senate Judiciary Committee and appears poised to become the newest justice, and only the fourth woman ever, on the United States Supreme Court.

In response to accusations that she is too political, Kagan distinguished her role in the Clinton administration from her potential position as Supreme Court justice as “entirely different.” She stressed that once on the bench she would “not favor any political party.”

Said Kagan,

As a judge, you are on nobody’s team. As a judge you are an independent actor, and your job is — is simply to evaluate the law and evaluate the facts as — and apply the one to the other as – as best, as most prudently, as most wisely as you can. And, you know, the greatness of our judicial system lies in its independence.

Kagan’s characterization of the role of the judiciary is appropriate not only for our country’s highest court, but for our state courts as well. Judges must be afforded the ability to think and act impartially no matter what bench they sit on. Despite differences in judicial selection between the federal and state court systems, the primary objective of maintaining judicial independence should remain the same.

However, in Pennsylvania this goal has been severely hampered precisely because of the manner in which we select our judges. By forcing judges to run in contested partisan elections, we have effectively created the appearance, and perhaps the reality, that judges are bound to their political parties. The election system makes people wonder what team a judge is on.

Yet Kagan emphasized that judges aught not be beholden to any outside interests.

And that means when you get on the bench, when you put on the robe, the — your — your only master is the rule of law.