Archive for October, 2010

Oct 28 2010

Negative Campaign Ads Harm Public Perception of the Courts

Published by under Judges,Opinion

Richard L. Hasen and Dahlia  Lithwick at Slate have compiled a collection of frightening ads in what they refer to as their “judicial election campaign ad spooktacular.” Despite that tone, the article draws attention to the serious problem of increasingly expensive and negative judicial campaigns.

Hasen and Lithwick describe parts of the underlying problem – a United States Supreme Court ruling that removed restraints from what judicial candidates can say and a line of cases that have removed limits on campaign spending. They also identify business, trial lawyers, and labor interests as primary contributors to judicial campaigns. In addition, Hasen and Lithwick point out that special interest groups, including those from outside the state where the election is occurring, are getting involved with negative television ads. The article sums up the situation:

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These are distinctly frightening times – especially for those of us who believe judicial elections should be different from other elections and that it is important to maintain both the appearance and actuality of impartial justice.

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Hasen and Lithwick close with a warning: “If judicial campaigns become just like other political campaigns, these ads will have sequels. And those sequels will be even scarier still.” We agree that the negative tone of judicial campaigns contributes to a public perception that judges are no longer different from other offices. People should have confidence in courts as fair as impartial places that differ from the politicking that occurs in other branches of government. Merit selection is the best way to ensure such courts.

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Oct 28 2010

Expensive Judicial Elections Create the Perception of “Tainted Justice”

Over at Gavel Grab, Peter Hardin draws attention to the costly judicial elections underway in Alabama. Noting that Alabama has the most expensive Supreme Court elections in the country, Hardin examines an editorial that appeared in the Press-Register criticizing judicial elections.

The editorial opens with a strong critique of judicial elections in Alabama: “As long as state Supreme Court justices have to raise money – sometimes lots of it – to win their seats, justice in Alabama is going to look like it’s for sale.” It goes on to describe how judicial candidates go about raising money in the same way as candidates for other offices – going on the campaign trail, shaking hands, and actively fundraising. This creates the perception that judges can be influenced by campaign donations and political preferences. The editorial notes that Alabama’s rules regarding political action committees worsen the perception problem because they allow candidates and donors to hide the source of donations. The editorial echoes Justice at Stake executive director Bert Brandenburg’s concerns over judicial fundraising:

“As long as we’re asking more judges to dial for dollars from the people who appear before them, then the more we’re asking judges to act like Huey Long on the campaign trail and then turn around and act like Solomon in the court room.”

We agree that judges should not be in the fundraising business, and that their presence there diminishes public confidence in an impartial judiciary. We believe that a change to the selection process is necessary, and that merit selection is the way to ensure fair and impartial courts. The editorial concludes with a concern that we share in Pennsylvania:

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“As long as the litmus test for Alabama Supreme Court justices is how well they can fund a political campaign, then the state’s going to be stuck with the reputation – or at least the perception – that it tolerates tainted justice.

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Oct 27 2010

“Electing Judges Has to Go”

An editorial in the Chicago Tribune calls for Illinois to get rid of judicial elections and move to a merit selection system. In making its point, the editorial looks at the great expense and negative tone of the campaigns for and against current Illinois Supreme Court Justice Thomas Kilbride. The Tribune announces that the core issue of this race is politics, with the balance of power on the court at stake. It identifies business interests as funding one side of the race and labor and the Illinois House Speaker as largely funding the other. The editorial notes: “This kind of election challenges every judge’s independence.” This is true because regardless of the outcome it illustrates the role of money and fundraising, as well as making it clear that controversial decisions can make judges into political targets.

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The editorial does not stop at identifying the problem, it also proposes a solution: “We think this business of electing judges has to go. We need a merit selection system.” It goes on to say: “The public can’t have confidence in judges when their elections are dominated by gaudy cash from interests groups – or the speaker of the House.” We agree that judicial elections undermine public confidence in an independent judiciary and that merit selection is the best way to restore that confidence and ensure fair and impartial courts.

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Oct 25 2010

North Carolina Paper Looks for “A Better Way to Choose Judges”

An editorial in the News Herald calls for North Carolina to do away with its nonpartisan judicial elections and move to merit-based selection of judges. The editorial calls for impartial and qualified judges: “By its very name, ‘popular election’ is wrong. Do we really want the most-popular glad-hander on the bench, or do we want the man or woman with the most knowledge, experience and proven wisdom and impartiality?” It questions whether under the current system voters have access to the information required to determine whether a candidate is qualified to be a judge.

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The editorial calls for North Carolina’s legislature to adopt merit selection, creating a nonpartisan nominating commission that would be composed of lawyers and non-lawyers. Retention elections would occur after an initial term on the bench. It calls for this change because: “Merit selection helps assure voters that the men and women presiding over our courts have the qualifications and experience to provide fair, well-informed justice.”

We agree that merit selection is the best way to ensure fair and impartial courts, and believe that the time has also come in Pennsylvania to switch to merit selection of judges.

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Oct 22 2010

“The Farcical Exercise” – Judicial Elections Around the Country

Published by under Judges,Merit Selection

Over at Gavel Grab, Peter Hardin takes a look at various judicial elections and ballot initiatives happening around the country. In doing so, Hardin provides examples of the weaknesses inherent in judicial elections.

In Georgia, the Secretary of State is looking at the possibility that a candidate for the state supreme court may have violated election law. A Huffington Post commentary denounces the amount of money involved in the campaign for seats on the Ohio Supreme Court, referring to the money as “scandalous ‘justice for sale’ financing.” Pointing to the lack of attention typically given to judicial elections, the commentary attempts to bring to light the: “wave of campaign cash and independent expenditures by businesses and organizations whose interests are tied up in cases before the Ohio Supreme Court.”

In Nevada, the struggle continues over the ballot initiative to switch from judicial elections to merit selection. Meanwhile, an editorial in the Detroit Free Press asks Michigan voters to approve a constitutional convention to dispose of judicial elections. Referring to “the farcical exercise known as judicial elections,” the editorial explains that the election system is “dysfunctional” and dominated by campaign contributions from interested parties. The editorial argues that, the system:

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tends to work poorly for ordinary citizens. Michigan’s ostensibly independent judiciary is increasingly larded with apparatchiks who owe their initial appointments to partisan loyalty and are virtually immune from accountability thereafter.

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Judges are different from other government offices, and the process to select them should reflect these differences. The use of ugly or illegal campaign tactics, the perception that justice is for sale, and the involvement of special interest money are all reasons that judicial elections do not work to create fair and impartial courts. Merit selection addresses these concerns and provides a way to select an independent judiciary.

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Oct 19 2010

Special Interests “Chip Away” at Impartial Courts

An editorial in USA Today focuses on the threat special interest groups pose to judicial independence and asserts that these groups have “chipped away at impartial justice.” It looks at the increase in campaign expenditures during the past decade in comparison with expenditures in the 1990s and sees special interest groups: “ensuring they’ll win in court by spending big money to elect judges who agree with them and to oust those who don’t.” The editorial goes on to express concern over the content of judicial campaigns, as well as the role judges play in fundraising:

State Supreme Court races have often degenerated into nasty battles with corporate interests on one side and trial lawyers on the other.… Scurrilous attacks and nasty ad campaigns are now routine in judicial races. Judges themselves raise money from lawyers, doctors, union chiefs and business executives who then appear in their courts, an obvious conflict of interest.

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We agree that judges do not belong in the fundraising business and special interest groups should not be allowed to exert influence over the courts. Merit selection is the best way to put an end to ugly judicial campaigns and ensure fair and impartial courts.

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Oct 18 2010

Money Threatens Judicial Independence

Roderick M. Hills at the Huffington Post believes that there is a threat to the independence of state judiciaries and that merit selection offers the best solution. His post discusses some of the dangers created by the increasing amounts of money involved in judicial elections, noting that judicial independence is threatened when judges become fundraisers. Hills admonishes those who: “foolishly ignore the increasing number of politically charged judicial contests that are characterized by large campaign expenditures from groups or individuals who seek to influence judicial opinions.”

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Hills is concerned with about how contested judicial elections affect the business climate and the willingness of businesses to operate in a particular state. He urges: “Business is best when it operates in the market place and not the political arena.” He notes that the money problem creates difficulties for big businesses whose courtroom opponents may be able to bring suit in a state where they are regular contributors to the judge presiding over the case.

If big business is concerned about facing bias in the courts, what about the threat to small business owners and independent litigants with fewer resources? Courts should be fair and impartial, and litigants should not have to worry about where judges get their campaign funds. Merit selection takes judges out of the fundraising business and ensures an impartial judiciary.

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Oct 15 2010

Keep Money Out of the Courtroom

Retired United States Supreme Court Justice Sandra Day O’Connor recently appeared on PBS’ News Hour to talk about civics education, judicial elections and having three women on the Supreme Court.  The whole interview is worth watching, but pay close attention to what Justice O’Connor has to say about judicial elections.  She explains her growing concern about judicial elections and its relation to the money problem.  She notes forcefully that elections bring money into the courtroom and urges that we need get the money out. Her preferred solution: Merit Selection which gets judges out of the fundraising business and offers the best way to get the most qualified, fair and impartial judges on our courts.

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Oct 13 2010

Electing judges is “crazy”

A sharp commentary on judicial elections appeared in a British publication this week. An Economist blog post entitled “Lunacy on the march” harshly criticizes the practice of electing judges. The post opens by declaring: “America’s system of choosing judges is crazy.” It goes on to deplore the excessive amount of money poured into elections and the negative impact this has on confidence in the judiciary. Noting that judicial elections have become “expensive and ugly,” the post uses a 2004 Illinois race for Supreme Court as an example. There: “The election’s winner called the spending ‘obscene,’ adding, ‘How can people have faith in the system?’” When even a winner within the system acknowledges the flaws, it is clear that there is cause for concern.

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The post concludes by describing the appropriate role for judges and lauding merit selection. It sums up nicely a reason to avoid judicial elections: “A justice should work to apply the constitution, not please a certain constituency.”

We agree that the role of the judiciary differs from that of the legislative and executive branches, and these differences explain why judicial elections threaten judicial independence. Merit selection takes money and campaigning out of judicial selection. It is time to move away from “crazy” elections and adopt a system that provides fair and impartial courts.

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Oct 13 2010

A New Look at Merit Selection

According to a profile in the Pennsylvania Law Weekly (subscription required), the Pennsylvania Association for Justice (formerly the Pa. Association of Trial Lawyers) is taking a new look at Merit Selection.  New President Tim Conboy explained that he is appointing  a commission to study the issue in response to requests of the membership.

“There’s no question that if we would change our position it would be a major shift,” Conboy said. “It’s something that people are discussing across the country right now and there have been several editorials. We thought it was time to at least look at our position and figure out what the majority of our members support and clarify our position on the issue.”

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We certainly welcome traditional opponents taking a new look at Merit Selection, and we are hopeful that the Pennsylvania Association of Justice will join the many other groups that have concluded that judicial elections are not working for Pennsylvania.

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