judgesonmerit.org

An article in the Press-Citizen looks at the dangers of politicized retention elections in Iowa, and what that could mean for Iowa’s judicial system. In the wake of three Iowa Supreme Court justices being voted off the bench in the 2010 judicial retention election, there have been some concerns about money and politics impacting the judiciary. However, rather than calling for a change to the judicial selection process, the article encourages greater public education to ensure that the system functions as intended.

Iowa Supreme Court Chief Justice Mark Cady acknowledges the dangers of politicized and expensive retention elections. Cady expressed his fear that when justices are removed based on court decisions the judiciary as a whole becomes politicized. Pointing out that the primary contributors to judicial campaigns are lawyers and businesses who come before the court, he notes that: “When people give money, they expect results over time.”

Cady believes in Iowa’s system, and hopes to preserve it and combat politicization through public education on the role of judges and the judicial system. He and the other justices have been working at this by travelling around the state and speaking with the public and high school groups. We agree that public education is a key component of any judicial selection system. In order for merit selection to provide and maintain a fair and impartial judiciary, it is vital that the public understand not only the role of the judiciary, but also the public’s role within the merit selection system. Retention elections, yes or no votes on whether a judge should remain on the bench, give the public the opportunity to weigh in on judicial performance. Judicial performance should be evaluated based on whether judges live up to their duties to be fair, impartial arbiters who provide equal access and respect to all who come before them.

In an op-ed in the Philadelphia Inquirer, Matthew Zencey, former editorial page editor of the Anchorage Daily News and first-time Pennsylvania voter, expresss big concerns about our judicial elections system:

I’m not too keen on electing judges. Before heading to vote, I looked up who the bar association said was qualified, but that was about all I knew before making my decision.

He contrasts the election system to Alaska’s Merit Selection system. He finds the Alaska system has worked well, avoiding judicial scandals while allowing voters the opportunity to decide through retention elections whether certain judges should remain on the bench.

Zencey also points out some other problems inherent in electing judges:

Even if you don’t have corrupt pols getting onto the bench, filling the judicial branch with elected judges is risky. They have to cater to a party organization, then raise lots of money from lawyers and companies whose cases they’ll be handling, before finally pandering to the people who elect them. Like the Founders, I’d prefer a judiciary that’s more insulated from the corruption of politics and the passions of the masses.

Wow, it only took Zencey one election to figure out that Pennsylvania’s system of electing judges makes no sense.  Hopefully, the legislature will let Pennsylvanians make this call for themselves by putting the issue of how we choose judges on the ballot for the people to decide.

In an Op-Ed in the Patriot News, Robert Speel calls for an end to appellate judicial elections. Speel, an associate professor of political science at Penn State Behrend, uses this week’s Democratic primary for Pennsylvania Commonwealth Court as an example of one of the reasons change is necessary. That race was between Kathryn Boockvar of Doylestown and Barbara Behrend Ernsberger of Pittsburgh, and is potentially facing a recount because of how close it was.

Looking at individual county results, Speel notes that voters appear to have made their choice based on geography rather than legal qualifications and experience. Boockvar carried all of the counties in the eastern part of the state, while Ernsberger carried all of those in the western part.

Speel goes on to point out the support among some political analysts, political scientists, and legal scholars to use a merit selection system to select state judges, and explains that more than half the states currently use some form of a nominating commission to select at least some state judges. Acknowledging that no system is perfect, Speel asks: “could it be any worse than voting on a judicial candidate based on how many miles she lives from your home?”

We agree that the time has come to change the way we select appellate judges in Pennsylvania. Merit selection is the best way to ensure a fair and impartial judiciary with the most qualified judges.

Tuesday’s primary election included a number of judicial races. In terms of statewide seats, there were openings on the Superior and Commonwealth Courts. For the Superior Court seat, Harrisburg lawyer Vic Stabile won the GOP primary. In the general election he will face Allegheny Judge David Wecht, who ran unopposed in the Democratic primary. New Hope lawyer Anne Covey won the GOP primary for the open seat on the Commonwealth Court, but her opponent has not yet been determined. The Democratic primary is still too close to call, featuring Doylestown lawyer Kathryn Boockvar and Pittsburgh lawyer Barbara Behrend Ernsberger. Boockvar is the candidate backed by the party, and she received a rating of “Recommended” from the PA Bar Association. The PA Bar Association rated Ernsberger “Not Recommended.”

Locally, there are ten seats open on the Philadelphia Common Pleas Court. Only eight candidates ran on the Republican ticket, so they all receive spots in the general election. They are – Jim Divergilis, Fran Shields, Ted J. Vigilante, Anne Marie B. Coyle, Maria McLaughlin, Kenneth J. Powell Jr., Sayde J. Ladov, and Charles Ehrlich. Of those, only Shields did not also run on the Democratic ticket. The ten leading vote getters in the Democratic party were Sean Kennedy, Jonathan Q. Irvine, Angelo J. Foglietta, Maria McLaughlin, Diana Anhalt, Vincent L. Johnson, Barbara M. McDermott, Carolyn H. Nichols, Edward C. Wright, and Charles Erlich. Seven of these ten were endorsed by the Democratic City Committee. In the Municipal Court primary, Democratic City Committee backed Marvin Williams won. There was no Republican candidate for Municipal Court judge.

Many other local judicial races took place across the state.

So, it’s the morning after.  As expected, very low voter turnout yesterday.  In the appellate court races, the Republican endorsed candidates won handily.  The Democrat for Superior Court was running unopposed. But the Democratic contest for Commonwealth Court is not yet determined, and it’ s possible that the unendorsed candidate who received a “not recommended” rating from the Pennsylvania Bar Association could be on the ballot in November.

In Philadelphia, ballot position and party endorsement were important factors in determining who won the very crowded races for Common Pleas Court.

So, what’s all this mean? That elections still aren’t designed to get the most qualified, fair and impartial judges on the bench.  Instead, elections generally reward luck (ballot position), political connections (party endorsement), and fundraising prowess.  Why should Pennsylvania be relying on such a system to pick officials whose job is to be fair, impartial, unbiased judges accountable to the law?

PMC representatives spent election day encouraging Pennsylvanians to vote while also pointing out the problems inherent in electing judges.  PMC’s Executive Director Lynn A. Marks spoke on PCN’s Call-In Show about how judges are different from other public officials and should therefore be selected in a different way.  Deputy Director Shira Goodman spoke about the issue and why electing judges doesn’t make sense on WHYY and WILK FM.

In addition, our letter in the Times-Leader argues: “The best way to solve the “money problem” is to get judges out of the fundraising business by ending the practice of electing judges.”

Our comments about the elections and how random factors have too great a role in deciding who gets on the bench can be found in the Philadelphia Inquirer and Daily News.  Most telling is an interview with Marks following her own trip to the voting booth:

‘I voted this morning. . . .I’m a politically active lawyer, and I didn’t know most of the people running. . . .’

‘It’s a crazy system to have people running very political campaigns for a job that’s supposed to be non-political and non-partisan.’

So, here at JudgesOnMerit, we’re doing our “Monday Morning Quarterbacking” and once again asking why we continue to elect judges this way.  We think it’s time for Pennsylvanians to get the opportunity to decide whether there is a better way to pick judges. We hope they will get that chance.

It’s Election Day.  There is a vacancy on the Commonwealth Court and a vacancy on the Superior Court. In addition, there are many local races for Magisterial District Judgeships, Common Pleas Courts, and Philadelphia Municipal and Traffic Court.

The candidates running for the appellate court seats are:

More information about  judicial elections is available on PMC’s frequently asked questions about judicial elections page and PMC’s how judicial elections work page.

Recently, an AP article looked at various positions at stake in Tuesday’s primary election, making note of difference in candidates, issues, endorsements, and money that has been raised. Sadly, political issues are playing an ever growing role in judicial elections. An article in the Philadelphia Inquirer explains that this is due in part to a 2002 U.S. Supreme Court decision that relaxed restrictions on what judicial candidates can talk about.

The change in these restrictions is apparent from judicial candidate Paul Panepinto’s campaign website, which announces that he is Roman Catholic and “pro life.” Panepinto, currently a Philadelphia Common Pleas judge, is running for an open seat on the Commonwealth Court. PMC’s executive director Lynn Marks explains that the statement “does not cross the line of what a candidate can and can’t do, but it does send a message.”

Issue voting is a problem in judicial elections because it makes our choice in judges too similar to how we choose politicians. The judiciary is different from the other branches of government, and the way we choose judges should likewise be different. Pennsylvania deserves a fair and impartial judiciary with judges selected based on their qualifications and experience. Judicial elections allow money and politics to play too great a role in the process. It’s time to get judges out of the business of campaigning, and Merit Selection is the best way to accomplish that.

PMC Executive Director Lynn A. Marks will appear on PCN-TV’s Call-In Show tonight to discuss today’s judicial elections.  Also appearing will be Pennsylvania Bar Association President Matthew Creme and attorney Gary Hunt of Pittsburgh. The show will air at 7:00 pm. To call in, use PCN’s toll-free number 1-877-PA6-5001 (1-877-726-5001).

In an article in the Times-Leader, Terrie Morgan-Besecker asks whether local judicial candidates should accept campaign contributions from attorneys. Focusing on the Luzerne County judicial election, the article notes that 13 of 16 candidates in the upcoming primary are accepting contributions from attorneys. There are six open seats.

As of May 6, 11 of the 13 candidates accepting attorney donations had collected a total of $58,571 in individual donations of $250 or more. Individual donations of less than $250 do not show the occupation of the donor. Over 70 attorneys have made contributions of $250 or more, and the majority of those lawyers practice in Luzerne and or Lackawanna counties. Most of the donations fall in the $500-$1,000 range. The candidates accepting attorney donations and their supporters point out that campaign fundraising is a reality of seeking political office, and that without fundraising only the wealthy would be capable of running.

Although the candidates accepting attorney contributions insist that it will not affect their fairness and impartiality on the bench, the three candidates refusing to accept attorney donations point out that even if that is true it is not the public’s perception. These candidates – Mike Blazick, Molly Hanlon Mirabito, and Lesa Gelb – note the public’s lack of trust in the court system and insist that: “trust can’t be restored if there’s any question that a judge’s impartiality might be impacted by contributions.” Gelb points out that: “People equate money in the courtroom with bias and impropriety” and Blazick explains: “[y]ou can’t restore confidence in the courts by taking money from those who appear in the courts every day.”

Over at Newsworks, Jan Ting berates Pennsylvanians for continuing to put up with judicial elections: “Election of judges is a terrible idea and a terrible practice. It results in judges beholden to those who helped to elect them.”

Ting notes the importance of money and political connections in winning judicial elections.  He goes on to explain that this undermines public confidence in the courts.

Ting’s preferred solution is Merit Selection: “While judicial appointment through a merit selection process is not a perfect system, it is far superior to election of judges, and results in a judiciary in which citizens have a higher level of confidence and respect.”

We completely agree.