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Recently, the Philadelphia Inquirer ran a letter to the editor written by PMC’s executive director and deputy director. The letter came in response to an article describing the fact that judges in Pennsylvania legally can, and do, accept gifts from lawyers and businesses that might later appear in court. The rules allow the acceptance of such gifts as long as it is disclosed.

The letter criticizes the practice because it creates an appearance of impropriety and bias:

People must believe they get a fair shake when they stand before a judge. Nothing should be permitted that undermines that belief. Allowing judges to accept gifts creates the appearance that judge may be biased in favor the gift-giver. Whether or not such bias exists, the public’s perception that a judge has been improperly influenced is damaging not only to that judge but to the entire court system.

The letter concludes with a call for a change to the court rules. Disclosure cannot combat the appearance of bias. The only way to restore public confidence in the partiality of the courts is to prevent judges from accepting gifts altogether.

Yesterday the Legal Intelligencer published an editorial written by PMC about retention elections. Executive director Lynn Marks and deputy director Shira Goodman discuss the difficulties raised for retention elections by the ouster of three Iowa Supreme Court Justices, as well as the appropriate role for retention elections going forward. 

Despite the money and partisan campaigning that occurred in some retention elections this year, PMC remains confident that retention elections have an important function to serve. Ideally, retention elections should: “insulate sitting judges from the most dangerous elements of elections – the influence of campaign contributions, political party pressure and popular opinion. To combat the influence of special interest groups in retention elections, it is important for:

good government groups, lawyers, bar associations and all those who care about fair and impartial courts to take responsibility for better public education about courts, judges, judicial independence and the role of retention elections.”

The editorial ends with a call for education, and emphasizes the importance of the public’s role in a merit selection system:

there must be systematic, ongoing public education so that there can be a real appreciation for the special role of courts and judges. We need public buy-in of the notion that we are all responsible for protecting fair, impartial, independent courts.

Editorials in the Pittsburgh Tribune-Review, Patriot-News, and Philadelphia Inquirer criticize Pennsylvania Supreme Court Chief Justice Ronald D. Castille for accepting expensive gifts and call for a change to the court’s rules. Under the current rules, created by the Pennsylvania Supreme Court, trial and appellate judges may accept gifts as long as gifts valued over $250 are publicly disclosed.

All three editorials explain that the acceptance of such gifts undermines the public’s faith in an impartial judiciary. In addition, they point out that this Supreme Court supported a gift ban for 15,000 state court employees and magisterial district judges. The ban came as a part of broad new ethics rules that Chief Justice Castille described as: “fundamental to a good-faith relationship between the judiciary . . .  and the citizens.” The inequity of these different standards for different courts is clear, and disclosure of gifts does not prevent the appearance of impropriety.

The Philadelphia Inquirer also correctly draws a comparison between the harm done to public opinion of the courts when judges accept gifts and that caused when judges fundraise and campaign in judicial elections. “Millions of dollars raised for judicial campaigns create the same perception that justice is for sale, most voters say.” The problem of judicial elections can be fixed by legislators and then voters in a referendum deciding to move to merit selection; the problem of court gifts can be solved by the Supreme Court changing the rules to ban all gifts. The public deserves to have confidence that the courts are fair and impartial, and that cannot occur while money from attorneys and businesses is ever-present in the system.

An article in the Philadelphia Inquirer reveals that Pennsylvania Supreme Court Chief Justice Ronald Castille is accepting gifts and trips from lawyers and businessmen. Although these gifts are disclosed in accordance with court rules, this practice reveals a disturbing truth about the courts in Pennsylvania. The Pennsylvania Supreme Court has ruled that it alone can set and enforce ethics rules for judges and lawyers, and the rule allows Pennsylvania jurists except for magistrate district judges and traffic court judges to accept gifts as long as they are disclosed. This rule differs from those in many states and the federal rules. Gifts made to Chief Justice Castille include dinners, plane rides, tickets to sporting events, and rounds of golf, and at times they come from people with cases before the court.

 Under the current rules, this practice is legal but very disturbing. When judges accept gifts from lawyers who come before them, it creates the same problem that exists when judges fundraise and collect campaign contributions – the appearance that justice is for sale. As the article points out: “Ethics experts say jurists should avoid taking anything that could give even an appearance of a conflict.” In addition, the model code designed by the American Bar Association says judges should not accept gifts that: “might be viewed as intended to influence the judge’s decision in a case.”

 Public perception of the impartiality of the court is hurt when judges accept gifts from lawyers or from people or entities that might later come before them in court. Disclosure of these gifts is not enough to combat this; judges should be prohibited from accepting the gifts – period.

Over at MinnPost.com, Eric Black offers a review of a forum held yesterday on whether to change Minnesota’s judicial selection system from elections to Merit Selection.  Black notes that the forum got a little heated as the participants offered their views:

That was the topic of a lively panel at the Humphrey Institute in which the panelists came about as close to calling each other names as you ever hear at a Humphrey panel, and the audience got as close to rowdy as I’ve ever seen at a Humphrey panel.

We know people have strong views about judicial selection, but it’s usually best to keep things civilized and let everyone have their say.  In our mind, former Chief Justice Eric Magnuson made a strong case for moving to Merit Selection, focusing on the way judicial elections undermine public confidence in the impartiality of the judiciary.  Black summarizes Magnuson’s arguments:

When you go in front of a judge, you’d like to feel that the playing field is level.

Turning judicial campaigns into partisan dogfights will create the opposite situation.  Judicial candidates won’t be dumb enough to make campaign promises to rule particular ways on issues that might come before them in the courtroom. . . but they are gonna use buzz words and catch phrases and they’re gonna appear before particular groups in order to raise money. That’s what competitive elections are all about. Campaign spending in judicial elections is rising fast. . . inevitably creating the impression that the winning candidate will be influenced by the interests of their contributors.

Do you want that element, that bad smell, injected into your choice of judge. . . .The question won’t be whether you’re going to appear in front of a good judge or a bad judge. The question increasingly will be whose judge are you going to appear in front of?

We agree that judicial elections leave a bad taste and creative negative public perceptions about the courts.  There is no perfect system, but Merit Selection gets judges out of the fundraising business.  That sounds good to us.

An article in the Billings Gazette announces that a retired Montana Supreme Court chief justice believes that the state should move to a merit selection system in order to ensure fair and impartial courts. At a public forum entitled “Selecting Montana Judges: Protecting Impartiality, Ensuring Accountability and Preserving Public Trust” retired Chief Justice Karla Gray discussed her views. She plans on brining this idea to the state legislature.

Gray advocates for a change to merit selection because she believes that too many talented people are excluded under the current system. The article goes on to explain Gray’s criticism of judicial elections:

‘The election process is tainted once it becomes a political race,’ Gray said. ‘I think the worst thing about judicial elections is the money. It’s essentially a popularity contest and a money contest.’

Gray is not the only judge who sees the problem with judicial elections. The article reports that District Court Judge Dorothy McCarter, another panelist, described the difficulties of presiding over a high profile case knowing that people in the courtroom will later vote in an election. Another panelist, a civil litigator, explained that judges are different from other elected officials and should be treated differently. He proclaimed: “In order to have good judges, we have to move them away from politics and not into politics.”

We agree that judges are different from politicians, and judges should not be involved in campaigning or fundraising. We also believe that Pennsylvania should also look to change to merit selection because it is the best way to ensure fair and impartial courts.

It’s no secret that last week’s judicial elections had some shocking results. Three Iowa Supreme Court justices failed to win retention elections, due entirely to a  ” vote no ”  campaign based on their votes in a unanimous decision upholding the right to gay marriage.  An Illinois Supreme Court justice won retention in a hard-fought, expensive campaign related to his rulings about damages caps. And in Colorado, several justices remained on the court despite a  ” vote no ”  campaign.

Some have argued that these elections demonstrate that electing judges is the answer and have predicted that the Merit Selection movement will suffer as a result.  We disagree.  As the Philadelphia Inquirer argued  in an editorial earlier this week, these recent retention elections show that Merit Selection works and does not take any power away from the voters:

Even with proposals to switch only the state’s appellate courts to appointments, labor unions, trial attorneys, pro-lifers, and other merit-selection foes still contend that appointing judges denies voters’ rights. Well, Iowa proves them wrong: Voters had their say when the judges came up for a retention election.

We may think that a particular retention campaign was misguided and wrongly focused on ideology and the popularity of a decision rather than on the factors we believe should drive such decisions: whether a judge behaved fairly on the bench, was timely in completing work, was regarded as writing sound, fair decisions and gained a reputation for honesty and high ethical standards.  But disagreeing with a campaign or being disappointed in an election outcome does not mean the Merit Selection system failed.  If there are to be retention elections, voters must have the freedom to make good and bad decisions in the ballot box.

Retention elections have never been the perfect solution but they have been the component of Merit Selection that guarantees a strong, clear role for the public in the judicial selection process.  In theory, these elections should be different – with candidates running unopposed on a nonpartisan yes/no ballot, there should be no need for expensive campaigns and no overt politicization of the judge on the ballot.  For much of history, this has proven to be the case: judges didn’t raise money, most were retained; on occasion, retention was used to get rid of a judge that voters felt should no longer be on the bench.

In recent years,  some retention elections have become more high profile, including attracting special interest money.  But this seems to us to be more a factor of particular hot button issues than the inevitable product of the retention system.  It is our job to ensure that our courts remain special institutions where money, popular opinion and partisanship cannot hold sway.

Retention can be what it was intended to be: a tool that guarantees that the people can weigh in on a judge’s performance, without becoming a weapon of partisanship and special interest.   The antidote to what happened in Iowa is better education campaigns – about the constitutional roles and obligations of our courts and judges, the purpose of retention elections and the problem with having judges who fear they must conform to popular will.  Sometimes that campaign will work; this time, it did not.  But for those of us who believe Merit Selection is the better way and who believe retention maintains a strong role for the people in the judicial selection process, that is a risk we are willing to take.

The point is: Merit Selection works.  Iowans voted out judges they didn’t want on the bench.  We disagree with those voters’ motivations, but we believe it’s important they had the opportunity to weigh in.  As the Inquirer notes “Most Iowa voters were harsh and arbitrary in their assessment of the three justices, but no one can say that voters were denied their voice.”

A column in Time Magazine makes the case for getting rid of judicial elections. Author Adam Cohen, looking at the recent retention elections in Iowa, observes “elections are a terrible way of choosing judges — whether the decision is putting them in office or removing them.”  Cohen prefers the federal system of presidential appointment, Senate confirmation and life tenure.  He argues that this ensures the critical independence of the judiciary.

Cohen also focuses on the money problem and the skyrocketing cost of judicial elections:

The money is almost always intended to buy justice in one way or another. Business groups funnel contributions to candidates who will let businesses trample on the rights of workers and consumers. Plaintiffs’ lawyers, on the other hand, want judges who will uphold sky-high damage awards — and large attorney’s fees.

In an article appearing on Law.com, Katherine A. Helm takes an interesting approach to examining state judicial selection processes by doing so in the context of the United States Supreme Court and a new John Grisham novel.

Helm looks at U.S. Supreme Court decisions that have divided along the party lines of those who appointed the justices and describes the behind the scenes rigging of judicial elections in Grisham’s novel. This leads her to ask whether the novel’s tagline, “Politics has always been a dirty game. Now justice is, too” applies to the actual judicial system.

In expressing worry over state judiciaries Helm does not stop at Grisham’s criticisms but notes retired U.S. Supreme Court Justice Sandra Day O’Connor’s stance against an elected judiciary, as well as the concerns of several sitting justices in regard to contributions to judicial campaigns. Helm announces: “If the highest ranks of the judiciary are concerned that money in elections threatens the very institution and the fair administration of justice, people should listen.”

Helm goes on to discuss the dangers of allowing money from corporations and special interest groups to affect judicial elections, in addition to the risk when judges try to make popular decisions instead of legally correct ones. “If judges start to treat their profession as a business and hesitate to rule against their electorate for fear of losing their jobs, the administration of justice is compromised.” Helm follows her concerns with a call for a change to a system involving appointment. She concludes that there is an inherent difference between politics influencing a judicial appointment and “fat cats or lobbyists bankrolling “their guys” and their campaigns to get them on the bench to serve their economic interests and loaded social agendas. This is intolerable and a judicial form of pay-for-play at its worst.”

 We agree that judicial elections threaten judicial independence, and that it is time to change the system. A merit selection plan that includes a bi-partisan nominating commission addresses the concerns about politics in judicial appointments and fundraising involved in judicial elections. Merit selection represents the best option for ensuring fair and impartial courts.

In the wake of the 2010 election season, the Birmingham News editorial board criticizes the practice of electing judges in Alabama. The editorial uses as an example a particularly ugly race for a seat on a circuit court.

Describing the nasty tones that both campaigns utilized, the editorial comes to the conclusion that: “[b]oth candidates were demeaned in the attack/counterattack cycle, and so was the judicial system.” The editorial also correctly states that the ability to run a successful political campaign has no bearing on one’s qualification to be a good judge.

The editorial concludes with a call for Alabama to change its judicial selection process, stating a preference for moving to an appointment-retention system. Acknowledging that there is no perfect system, the editorial board believes that such a change could: “emancipate judges entirely from a process that requires them to raise gobs of money and end up beholden to the people and businesses that stand to gain or lose from court actions.”

We agree that it is time for a change, and that merit selection provides the best way of ensuring fair and impartial courts.