Archive for September, 2010

Sep 29 2010

And the Money Keeps Rolling In

Published by under Merit Selection

An editorial in the New York Times sounds the alarm about a problem that Pennsylvania is already familiar with — the rising tide of money washing into judicial elections. “As spending in state judicial races by special interests has vastly escalated in recent years, so has the threat to public confidence in judicial neutrality that is fundamental to the justice system.” Poll after poll reveals that people believe that fundraising for judicial elections affects court room decisions. This all leads to the public perception that “justice is for sale.”

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The Times notes that it is expected that judicial campaign spending will continue to skyrocket this fall — a reasonable prediction given that last year Pennsylvania saw judicial fundraising records broken as well. That led to this dire conclusion to the editorial: “The nation’s system of justice depends on having judges who are fair-minded, independent and unafraid to make unpopular decisions. The onslaught coming this fall will not help.”

As the editorial noted at the outset, judicial elections just don’t work.


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Sep 27 2010

A problem with judicial campaigns

Published by under Judges,Merit Selection

We often talk about the money problem associated with judicial elections, but another flaw in the system is the affect campaigning has on what should be an impartial judiciary. A recusal controversy involving a West Virginia Supreme Court Justice highlights this concern. In a post on The BLT: The Blog of the Legal Times, Tony Mauro writes that Justice Menis Ketchum declined to recuse himself from a case that brings a direct challenge to a law involving a state cap on non-economic damages that Ketchum promised he would not vote to overturn. Ketchum’s statements on the law came during his 2008 election campaign:

Ketchum, when asked about the law, made this statement, according to local West Virginia media: ‘I will not vote to overturn it, I will not vote to change it. I will not vote to modify it.’

In refusing to remove himself from the case, Ketchum stated that: “I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal.” In this statement he did not deny that he made the campaign promise or that he possessed a predisposition regarding the issue. Instead, Ketchum asserted:

While I am predisposed to do just what I said during my campaign – that I will not vote to overturn, change or otherwise modify the MPLA caps – as a jurist I am required to look at all issues from a different perspective than I enjoyed as Lawyer Ketchum.

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This issue is larger than whether or not this judge can separate his campaign promises and preconceived notions from his current role as a jurist to make a fair ruling. Judicial elections force potential judges into political roles because of the need to fundraise and campaign. When judicial candidates go on the record regarding issues that later come before them as judges, it creates at a minimum the appearance of preconceived biases. This undermines confidence in an impartial judiciary because the outcome seems fixed from the start. Judicial selection should not place future judges in such a compromising position.

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Sep 23 2010

It’s time for a change

Over at What About Clients?, JD Hull denounces the continued practice in 39 states of electing judges in a post entitled “Why are Americans still popularly electing judges?”

Comparing judicial elections to such antiquated systems as witchcraft laws and debtors prison, Hull clearly makes the point that it is time to find a new way to select judges. He criticizes the poor public perception that judicial elections create, arguing that:

[T]hey send bad-smelling messages to all clients, all Americans, and the entire world about the nature of justice in America: (1) Judges have “constituents”; and (2) Justice here is “for sale”.

Hull closes by encouraging readers to explore our website and Merit Selection:

Do see “Choose Judges on Merit”, a site by our favorite sane voice in the changing wilderness, Pennsylvanians for Modern Courts.

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We’re blushing.

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Sep 21 2010

“A Recipe for Corruption”

An editorial in the Birmingham News condemns Alabama’s system of judicial elections and supports a change to an appointment-retention system. The editorial looks at the recent poll by Justice at Stake, in which a majority of Republicans and Democrats asked said that they believed campaign donations significantly impact court rulings.

Noting Alabama’s reputation for having the most expensive judicial campaigns as well as the ease with which Alabama law allows special interests to disguise the mo

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ney they give to judicial campaigns by going through political action committees, the editorial explains the trust problems judicial election fundraising is creating:

It’s a recipe for corruption in any arena, but it’s particularly corrosive when it comes to courts that are supposed to be impartial arbiters of justice. Even a decision with a firm basis in the law looks shady when the winning party bankrolled the judge.

We agree that the role of money in judicial elections adversely affects the public’s relationship with the court system. Merit Selection is a way to get judges out of the fundraising business and restore public confidence in the courts.

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Sep 16 2010

Judicial Independence — In Danger of Extinction?

Over at the Huffington Post, attorney and professor Andrea Lyon offers a chilling analysis of the insidious effects on our courts of the money and pressure to please that characterize judicial elections.

She argues that electing judges threatens actual judicial independence both by requiring judges to act in acco

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rdance with what is popular, even at the expense of what is right, and also by introducing the poison of money.  She closes with an appeal that notes the critical importance of the judiciary and urges reform:

Being a judge is a hard job. It requires intellectual acuity, legal knowledge, patience, compassion and toughness and most important of all, independence. We need to change how we select judges in this country before judicial independence becomes not only endangered, but extinct.

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Sep 14 2010

What is Justice O'Connor Afraid Of?

Over at Slate, Dahlia Lithwick offers a compelling analysis of the problems inherent in the effort to oust three Iowa Supreme Court justices because of their votes in a gay marriage case.  Lithwick, focusing on the recent speech given by Justice Sandra Day O’Connor in favor of Iowa’s Merit Selection system, explains:

[W]hat O’Connor was arguing for has nothing to do with judicial politics or gay rights or constitutional interpretation, and everything to do with money and judicial elections. That shouldn’t be a partisan issue.

We agree and are pleased that in Pennsylvania, Merit Selection is an issue that unites Republicans and Democrats, conservatives and liberals, business-oriented organization

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s and civic, religious and good government reform groups.  The challenge is to translate what has become a growing concern about the corrosive effect of money in judicial elections into the impetus for meaningful reform.

As Lithwick explains:

What frightens O’Connor about judicial elections isn’t the idea of more accountability or transparency for judges: She favors that. . . . What scares O’Connor is that the millions of special interest dollars pouring into these judicial election campaigns will start to influence judges. She also worries that millions of dollars of special interest money pouring into judicial races tells the public exactly what  [the leader of the vote no campaign] is trying desperately to prove in Iowa: It’s not just justice that can be bought and sold to the highest bidder, it’s the justices themselves.

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Sep 13 2010

"Fair Courts at Risk"

An editorial in the New York Times decries the effect of increasingly expensive judicial elections and the expanded participation by special interests in those elections:

[R]aucous campaigns with cheesy television attack ads paid for by influence seekers. These trends have grievously compromised judicial neutrality and the appearance of neutrality at the core of the nation’s justice system.

The biggest asset courts possess is the public’s confidence that they are fair, impartial and even-handed. 

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As the Times notes, increasingly expensive, partisan, divisive judicial elections undermine that confidence.

Correctly identifying money as a tremendous problem, the Times argues for solutions that get at the heart of the matter:

The fight for basic reforms, such as switching from judicial elections to a merit-based appointive system, and adopting tough rules barring judges from ruling in cases involving major financial supporters, must be pursued with fresh urgency.

We agree that it’s time to get judges out of the fundraising business. Merit Selection is the best way to accomplish this.

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Sep 08 2010

Across Party Lines, People Believe Money Influences Justice

A new poll released by Justice At Stake confirms that the belief that campaign contributions influence judicial decision-making is shared by Republicans and Democrats.  Among the key findings of the poll:

71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. All told, 71 percent of voters share this assessment; only 23 percent believe campaign expenditures have little or no influence on elected judges.

Justice At Stake explains in its press release:

The American mainstr

eam wants courts to be off-limits to special-interest money and partisan politics. . . . The new polling shows that the desire for impartial courts is broad and bipartisan.

We have written before about the growing public perception that justice is for sale.  This perception is powerful and problematic, even if it might be erroneous.  That is, even if no judge ever were influenced by a campaign contribution, the belief that he or she could be persists.  It is not possible to disprove the belief.  This in itself weakens our courts, because our courts can only function when they have the trust and confidence of the people.

The only way to overcome the perception is to break its foundations — and the only way to break the perceived link between money and justice is to get money out of the system.  This can best be achieved by getting judges out of the fundraising business by using a selection system that does not require money at all: Merit Selection.

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Sep 07 2010

A Twist on the Money Problem

We often write about the Money Problem — the problem caused by a judicial election system that essentially requires candidates to raise campaign funds from parties, lawyers and law firms that are likely to appear before the winning judges in the future.  Here’s an interesting twist on the problem brought to us from Alabama.  According to the  Gadsden Times, two sitting Supreme Court justices are making financial contributions to the campaigns of current candidates for the Supreme Court.

The very fact of the donati

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ons should raise eyebrows –do we really want sitting judges getting involved in electing their colleagues on the bench? But that’s not what’s newsworthy in Alabama.  There, the story made news because two Republican justices were making contributions to Democratic candidates.

The money flowing to judicial campaigns is already a river of trouble.  Do we really need to complicate things by having  judges giving money in hopes of influencing who will be sitting with them on the bench?

There is a solution: get judges out of the fundraising business altogether by replacing appellate court elections with Merit Selection.

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Sep 01 2010

New judicial election report gets press

Published by under Merit Selection

In a recent post titled “Justice for Sale?” on the American Constitution Society blog, Bert Brandenburg, the executive director of Justice at Stake, comments on the key findings in the newly released report “New Politics of Judicial Elections 2000-2009: Decade of Change.”

The report, which was released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics, is a comprehensive review of spending in high court elections.

Some of the report’s findings include:

  • Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
  • Outside groups – funded by business groups, plaintiffs’ lawyers and unions – poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates’ records. Much of this involved secret money from unknown bankrollers.
  • Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

While pointing out that states electing judges has been around for a long time, Brandenburg points out a difference that has recently emerged:


hat is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O’Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

Although Brandenburg was talking about the 85 percent of state judges that face some form of election, he might as well have been talking just about Pennsylvania. The increasing money spent in appellate court elections in our state led to a record breaking combined $4.7 million spent in the last Supreme Court race – much of it coming from lawyers, firms and parties who appear before the justices.

As more and more money is spent, it has become increasingly difficult for  Pennsylvanians to believe that judges are impartial arbiters who can check their biases at the door after being forced to wage partisan campaigns that require fundraising.  This loss of public confidence weakens our courts. Judges should not have constituents, and people should not be given any reason to believe that justice is for sale. Merit selection is a way to combat this.

Read the Gavel Grab post here.


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