Archive for January, 2011

Jan 31 2011

Fight Resumes Over Tennessee Judicial Selection

The perennial fight over selection of appellate judges in Tennessee is back on, according to an opinion piece published in The Tennessean on 1/30. In “Judge-selection system in state instills trust,” Dwight Lewis explains how the state’s Merit Selection system works, and notes support for the plan from former Tennessee Supreme Court justice, and newly inaugurated governor Bill Haslam. Haslam cites his own experiences on the campaign trail as a reason for supporting the current system, saying “[a]s somebody who has spent two years going across the state campaigning, I’m just not sure we want our Supreme Court judges to do that.”

A 1/27 piece by Nashville Scene’s Jeff Woods states the problems with judicial elections even more bluntly. “Conservatives want judges to sing for their supper and submit to contested elections — but will that pimp out the bench?” After a sharp critique of both sides of the argument, Woods concludes that the political reality doesn’t bode well for a change in Tennessee. At least not yet.

For this session anyway, the most likely outcome probably is none at all. The Tennessee Chamber of Commerce already is talking about the need to send the whole argument to a summer study committee — a favorite water-treading tactic. Lawmakers will have to make a decision by 2012, when the current law expires. Who knows — a few Christmases from now, you might be able to buy someone a judge.

Woods’ turn of phrase eloquently captures the issues facing elected appellate judges here in Pennsylvania. Our appellate judges and justices are, in essence, required to “sing for their supper” by campaigning for votes, wooing political parties and collecting campaign donations. Any time they rule on a case involving a political ally or campaign donor, they’re left open to accusations that they’ve decided to “pimp out the bench.”

That’s why we’re asking our state legislators, and the people of Pennsylvania, to support the switch to Merit Selection of appellate judges, and why we’re rooting for Tennessee to leave its Merit Selection plan intact. We’ll certainly be keeping an eye on this ongoing debate.

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Jan 28 2011

Politics On the Docket in Illinois

The Supreme Court of Illinois recently ruled that former White House Chief of Staff Rahm Emanuel satisfied the somewhat unclear residency requirements for inclusion on the ballot in the race for Mayor of Chicago. In covering the court’s deliberations on the question, the Chicago Tribune points out the inherent contradiction of an impartial judiciary that’s selected by partisan voting:

The Illinois Supreme Court justices deliberating the fate of Rahm Emanuel‘s bid for Chicago mayor are sworn to uphold the state constitution without regard for special interests, yet that same document requires them to run for election in an inherently political system.

While much of the high court’s work is done in relative anonymity, the pedigrees of the justices are fodder for debate whenever they tackle high-profile cases with political consequences — from deciding a close governor’s race to ruling on the district maps that determine which party will control the Legislature. (emphasis added)

The appellate courts in Pennsylvania are burdened with the same contradiction. Judges and justices are required to raise money, cultivate political capital, and campaign for votes. But after the election is over, they’re expected to put all of that aside and rule impartially, even on matters involving the political supporters and financial backers that made it possible for them to reach the bench in the first place.

As long as our appellate judges are forced into the business of politics, the taint of possible influence will linger over even their fairest decisions. And otherwise qualified legal minds, lacking the political clout to wage a successful campaign, have little hope of reaching the bench. Merit Selection would enable those judges to achieve their positions based on their qualifications, rather than their political skills and fundraising savvy. That’s why we think it’s a better way for Pennsylvania to choose its appellate judges.

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Jan 27 2011

A Move Towards More Merit Selection Judges in Indiana

Published by under Judges,Merit Selection

The Northwest Indiana Times reports that an Indiana state Senate committee approved a plan switching the Lake County Superior Court’s current system of judicial selection, in which most judges are appointed but four are elected, to a complete merit selection system.

The four elected positions were formerly part of Indiana’s small claims court, which was folded into the superior court system. Supporters of a full merit selection system include an elected judge as well as other leaders of the judicial community. Those leaders described the bench provided by merit selection as: “one of the most experienced, qualified and diverse judiciaries in the state.” An editorial earlier in the week urged that this legislation should move forward because of the advantages of merit selection:

Removing judges from the political process is healthy for all involved. When judge candidates have to run for election, they often become obligated to those who make political contributions or bring votes to the campaign.

The bill now advances to the Senate.

We agree that merit selection ensures that qualified candidates sit on the bench, and that it is the best way to provide fair and impartial justice.

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Jan 25 2011

Judicial Politics on The National Stage

One reason why we advocate for a change in the way Pennsylvania selects its appellate court judges is to relieve some of the political pressure on judges and justices. The duties of judges distinguish them from officials in executive or legislative positions. Politicians are supposed to act on behalf of their constituents, and are expected to weigh the reaction of their party and the voters when deciding how to act. Judges, on the other hand, are supposed to be politically impartial. They are expected to base their rulings on the law, even – perhaps especially – if those rulings are unpopular, either with the voters or with a particular political party.

Slate columnist Dahlia Lithwick captures this sentiment perfectly. In a recent piece on the attendance of the annual State Of The Union address by the Justices of the United States Supreme Court, Lithwick writes:

The justices attend the State of the Union in their identical black robes for the same reason they are expected to sit there impassively amid the mayhem: They are supposed to be a testament to the fact that they are different from the elected officials all around them. Instead of complaining about how awkward it is to have to hide their feelings and ideologies, the justices should avail themselves of this once-a-year opportunity to show the public that their feelings and ideologies don’t matter in the first instanc[emphasis added].

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Contrast this with appellate judges in Pennsylvania. No matter how fair or impartial the judge who’s finally elected, it’s very difficult to even get on the ballot without winning the favor of a state political party.  Moreover, judges can’t get on the bench without stumping for votes and raising campaign contributions, just like any other politician. Is it any wonder that a majority of Americans believe that campaign contributions have an influence on judicial rulings?

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This is why we favor Merit Selection for Pennsylvania’s appellate judges. To honor that distinction between partisan politicians and impartial judges. To get judges out of the business of running political campaigns and raising campaign funds, and to restore the trust of Pennsylvanians in a fair and unbiased judicial system.

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Jan 24 2011

Changes in Harrisburg Bring Optimism for Merit Selection

Published by under Judges,Merit Selection

Bobby Kerlik at the Pittsburgh Tribune-Review reports that merit selection supporters are hopeful that the political changes in Harrisburg will help advance the cause of reform. Shira Goodman, deputy director of Pennsylvanians for Modern Courts, believes that the Legislature is ready to discuss court reform. She also thinks that this is a move the public will support: “We think the mood in Pennsylvania and the focus on the judiciary show the public is very concerned.”

Judicial reform is being discussed in different forums across the state. The Pennsylvania Bar Association plans to conduct statewide public hearings examining the state’s judiciary as part of its study of the advisability of having a constitutional convention. These meetings will explore judicial selection and judicial campaign financing. There is also the possibility of hearings in the House, according to a spokeswoman for the new head of the House judiciary committee Rep. Ron Marsico. Sen. Jane Earll expressed her support for merit selection, criticizing the money involved in judicial elections: “[T]hey’re inundated with money from special interest groups – it’s become a popularity contest to see who can raise the most money.” We are hopeful that these steps represent a move towards ensuring Pennsylvanians have fair and impartial courts appellate courts.

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Jan 20 2011

Merit Selection Nominating Commission Survives Iowa Challenge

The Des Moines Register reports that a federal judge has dismissed the lawsuit challenging the presence of lawyers elected by lawyers on Iowa’s nominating commission. The lawsuit, brought by Indiana based lawyer James Bopp, contended that these seven lawyer members should be excluded from the nomination process. The suit argued that the procedure violated the constitutional equal protection rights of the four Iowan plaintiffs.

United States District Court Judge Robert Pratt dismissed the case, calling these arguments “fatally flawed.” Describing his reasoning, Judge Pratt wrote in the ruling:

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“Undoubtedly, the right to vote for political representatives is the bedrock of American democracy. In this case, however, plaintiffs are asking the court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new 14th Amendment ‘right’ to greater influence the selection of judges.”

An Iowa press release described Attorney General Tom Miller’s response to the decision: “Today Judge Pratt very soundly upheld the will of the people of Iowa. This is a significant ruling that affirms our right as citizens to choose how we select our Supreme Court Justices.”

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Jan 19 2011

Campaign Money Taints the Judicial Process

Published by under Judges,Merit Selection

The Columbus Dispatch reports that a doctor believes the Ohio Supreme Court refused to hear the appeal in a malpractice case against him due to political considerations related to campaign contributions. Dr. John Cox, a neuro-radiologist, was sued for allegedly missing a stroke diagnosis. The original suit was brought against Cox and other doctors at the hospital. The Allen County Court of Common Pleas dismissed the suit, but the 3rd District Court of Appeals reinstated the case against Cox alone. Although the Supreme Court initially agreed to hear the appeal, the case was thrown out in December.

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Dr. Cox’s belief of impropriety is based on support given to the campaign of then-Chief Justice Eric Brown by the lawyer on the other side of the case.  Brown was involved in an unsuccessful campaign to maintain his position as chief justice. Dennis P. Mulvihill, the lawyer on the other side of this case, and his group contributed about $400,000 in an attempt to see Brown elected and two Republican justices defeated. Those two justices stepped down from the case, but Brown and the two judges he picked to temporarily replace them were part of the majority that decided to throw out the case.

Clearly, partisan elections and the campaign contributions that accompany them affect people’s perception of the courts. Whether his belief is right or wrong, Dr. Cox feels that he was denied fair and impartial justice: “‘I thought we had a system of justice here,’ Cox said this week. ‘Now we don’t have a verdict and we have to go to trial. It looks like political maneuvering.”

The court system as a whole is damaged when individuals walk away from their experiences with the law believing that justice is for sale. The best way to avoid the negative perceptions created by the role of money in the electoral process is to get judges out of the fundraising business by switching to Merit Selection.

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Jan 18 2011

Still Waiting For Change

Published by under Merit Selection,Opinion

Over at What About Clients?, Holden Oliver revisits the argument that partisan election of judges creates an atmosphere in which every decision is open to the inference of bias:

Judges should not have “constituents”–i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up.

WAC? is a blog about doing business in a global martketplace, and they don’t mince words when it comes to describing how litigating in that environment impacts the interests of corporate clients.

American litigation at a state level is already frustratingly local and provincial for “outsider defendants”–businesses from other U.S. states and other nations sued in local state courts–who cannot remove to federal courts, the forums where federal judges can and should protect them from local prejudice.

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It’s an argument that the folks at WAC? have made a number of times, but it’s worth reminding ourselves how judicial elections affect the interests of litigants big and small.

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Jan 14 2011

A Different Kind of Money Problem in Tennessee

Something interesting is happening in Tennessee – where the Merit Selection system for choosing judges is again under fire.  The Times Free Press reports (hat tip to American Courthouse) that two sitting Supreme Court justices contributed to the Senate campaign of the opponent of a state representative who was vocal about wanting to change the judicial selection system.  The contributions were legal in Tennessee.  They wouldn’t have been in PA, which allows judges to make political contributions only when they are engaged in an election themselves (See Canon 7).

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Frequent Merit Selection critic Dan Pero asks why these contributions aren’t drawing the same fire as contributions to judicial campaigns:  “Why is there a perception that it’s impossible for judges to remain fair and impartial if they accept a campaign contribution, but no reasonable concern about bias is [sic] they make a contribution themselves?”

Perhaps surprising to Mr. Pero, we are very concerned about this.  Judges should of course have the right to vote like all other citizens, but judges do give up certain rights when they take the bench – this should include overt political or financial support in elections.

Judges should not be in the business of raising or making political contributions.  Even the Pennsylvania restrictions on judicial contributions do not go far enough – money and politics should stay out of the courtroom. They best way to accomplish that is to keep judges out of the electoral system – whether as candidates or political supporters.

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Jan 13 2011

Where's The Transparency, Exactly?

Opponents of Merit Selection of appellate judges often argue that the hybrid appointment system – in which a nominating commission recommends a slate of candidates for open seats on the bench – lacks transparency. Merit Selection, critics claim, can never be as open and transparent as choosing judges by popular election. But we’re assuming that partisan election of judges is an open process, accessible to the public. How true is that assertion?

An article in Monday’s West Chester Daily Local News points out the reality; partisan election of judges isn’t the model of public access that it’s touted to be. Before judicial candidates can get on the ballot, they have to worry about securing the nomination of their preferred party. For instance, take the candidates competing for the endorsement of the Chester County Republican Committee.

A nod from the committee is seen as almost certain assurance that the candidate will win the party’s nomination in the primary election, while failing to capture it spells the exact opposite.

Each of the candidates has already begun peppering the committee members with letters and telephone calls touting their own experience and qualifications for filling the judicial seats that were vacated by the retirements of Judge Thomas G. Gavin and Judge Ronald Nagle, both of whom have taken the role of senior judge on the court.

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In order to get on the primary ballot as the party’s endorsed candidate, judicial candidates have to win a thumbs-up from a handful of political committee members, who are under no legal obligation to disclose their deliberations to the public.  As we pointed out in Tuesday’s post, to get the endorsement of the Philadelphia Democratic Committee requires a sizable political  contribution.

And the problem is only magnified for candidates at the appellate court level. Candidates for the Superior, Commonwealth and Supreme Court in Pennsylvania need the endorsement of a statewide political party to have any real hope of getting elected. Without those endorsements, judicial candidates are effectively locked out of the judicial selection process, regardless of their experience or ability.

By contrast, Merit Selection shifts the focus from a judicial candidate’s political savy, party connections, and fundraising prowess back to the aspiring jurist’s qualifications for the bench.  The best Merit Selection systems are specifically designed to ensure that the nominating process is open to the public. All of which makes Merit Selection a better way to choose appellate judges in Pennsylvania.

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