This week, New York implemented a new rule to limit the power of campaign cash on the judiciary. Section 151.1 of the Rules of the Chief Administrative Judge mandates that judges will no longer be assigned cases in which the lawyers, their clients or their firms have contributed above a set limit (2500 dollars for any one contributor or 3500 collectively) to the judge’s campaign fund in the preceding two years. Citing Caperton v. Massey, a 2009 Supreme Court decision requiring a state justice’s recusal from a case involving a major campaign donor, court officials observed that campaign contributions created a risk of bias, and emphasized the need for strong, clear standards. New York followed Alabama and California in mandating such restrictions and is the first to do so through administrative means. An article at Auburnpub.com hailed the move, emphasizing the importance of preventing politics in the courtroom and the appearance of bias.
Pennsylvania at the moment has no such restrictions, requiring only that judges recuse themselves if they feel that hearing the case will create the “appearance of impropriety.” However, few judges willingly admit that such a situation exists and some may take offense to such suggestions. In the hypothetical case where a judge is biased against a party, he/she has little incentive to recuse themselves. New York’s rule creates a strong, uniform standard and protects the rights of those in court. Such rules have become necessary in the wake of Supreme Court decisions such as Davis, Citizens United, and McComish, which weakened campaign finance laws and strengthened the power of large campaign donors. New York’s new rule levels the playing field and assures litigants a fair and impartial hearing. Moving forward, it is essential that states such as Pennsylvania adopt such laws in order to assure their citizens the same.
On Monday, a sharply divided Supreme Court voted to strike down the “matching funds” provision of the Arizona Citizens Clean Elections Act. The provision provided additional funding to publicly financed candidates who were outspent by privately financed opponents and special interest groups.
In the opinion, authored by Chief Justice John Roberts, the five justice majority noted that the prospect of triggering additional funding to an opponent could pressure privately financed candidates or independent groups to limit their spending. The Court concluded this was a substantial burden on political speech, and a violation of the First Amendment.
Reactions to the ruling are mixed, and its implications are still being teased out. While the opinion was careful to point out that public financing of election isn’t automatically unconstitutional, it’s clear that this Supreme Court remains extremely skeptical of election reforms that seek to limit the influence of campaign donations on politics, and is likely to strike down any measure that creates a disincentive for a candidate to raise and spend money.
Public financing of judicial elections is certainly a step in the right direction; it allows judicial candidates to campaign free of the pressure to raise campaign funds, and helps fight the public perception that donations could influence judicial decisions. Unfortunately, this ruling undercuts the usefulness of public financing systems. Without a mechanism for matching the expenditures of their opponents, publicly financed candidates face the prospect of simply being outspent, and not being able to compete in elections that are growing ever more expensive and contentious.
Merit Selection solves this problem, by eliminating the need for campaign fundraising, and allowing judges to reach the bench based on their qualifications, their skill, ability and knowledge of the law. That’s the system we support for appellate judges in Pennsylvania, and we hope the voters of Pennsylvania will join us in calling for change.
, judicial elections
, McComish v. Bennett
, public financing
A recent editorial in West Virgina’s The Charleston Gazette implores the American Bar Association’s House of Delegates to consider model recusal standards at its session in August. West Virginia has been at the center of conversations about recusal reform since 2009’s Caperton v. Massey. After a trial decision in favor of Caperton, Massey contributed $3 million to a judicial race that ultimately elected Justice Brent Benjamin to the West Virginia Supreme Court. The Caperton case stirred public skepticism of the court when the case came before the West Virginia Supreme Court and Justice Benjamin refused to recuse himself; the Court then ruled in favor of Massey, twice. Caperton appealed to the US Supreme Court arguing that Massey’s significant financial contributions during the 2004 judicial election was cause for Justice Benjamin’s recusal. The Supreme Court agreed, affirming the need for respect for, and impartiality of, the courts: “We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
According to the Brennan Center for Justice at NYU Law School, “Judicial election spending has spiraled out of control in the past decade, with high court candidates raising $206.9 million in 2000-2009, more than double the $83.3 million raised in the 1990s.” While clearer recusal standards will help to avoid corrupt results and hopefully regain the trust of the public, they do not address the root of the problem – that judicial elections, and their reliance on campaign contributions, create a climate of distrust. When candidates must raise money to run for the bench, elected judges may feel indebted to their contributors, and their decisions may affect the availability of future campaign funds. Furthermore, when the public watches a judge, who benefited from campaign contributions, rule in favor of that donor, trust is eroded regardless of the merits of the decision. A June 15th New York Times editorial asked “Can Justice Be Bought?” Stricter recusal standards offer only part of the answer. Moving away from judicial elections and instead supporting a system that prioritizes a judge’s ability to analyze the law over his or her ability to raise money provides a more workable solution.
Tags: campaign finance
, Caperton v. Massey
, The Charleston Gazette
, West Virginia
In response to recent criticism that financial support from George Soros is an attempt to “stack the courts,” Executive Director Lynn Marks affirmed the virtue of merit selection in an interview with FoxNews.com. “Merit selection would end the money race and get judges out of the fundraising business.” Marks further critiqued judicial elections’ emphasis on political connections saying that potentially qualified candidates “don’t put their name in for nominations because they think they don’t have the political connections or access to dollars.” Politics play an especially significant role in Pennsylvania’s judicial elections in which candidates identify with either the Democratic or Republican Party and must raise huge amounts of money to win their races.
Marks highlighted the need for merit selection for appellate courts explaining, “judges should resolve disputes based on evidence – they’re not supposed to be responsive to public pressure.” Contrary to assertions that appointment of judges through merit selection is undemocratic, merit selection actually requires that the public support it. As Marks said, “Merit selection requires a change in the Constitution, so a bill must… go before the public. So when people say, ‘oh, you’re changing the way we vote’ — yes, but only if the people want to change the way we vote.”
Tags: Fox News
, George Soros
, judicial elections
, Lynn Marks
, Merit Selection
, Pennsylvanians for Modern Courts
Incoming president of the N.C. Bar Association, Martin Brinkley, shared with Citizen-Times that halting legislation intended to return NC to a partisan judicial election system is a priority for the NC Bar. In his interview, Brinkley said, “Being a judge shouldn’t have anything to do with politics…It ought to do with deciding cases on the law and the fact. We do not favor going back to the old system.”
The NC Bar’s position is in response to Senate Bill 47, which is expected to be introduced to the House during special session in mid-July. The bill has also raised concerns among voting rights advocates for its provisions limiting the period of early voting and repealing same-day voter registration. Another controversial provision of the bill outlines procedures for ballot positions ensuring that top spots go to Democrat and Republican backed candidates.
The debate surrounding SB47 highlights many of PMC’s concerns regarding judicial election. The NC Bar rejects the attempt to increase politicization of the judiciary; State Senator Tom Apodaca supports partisan races noting that “every party spends a ton of money” identifying candidates as Democrat or Republican; others decry ballot position gaming and increased obstacles to voting. While we agree that party identification, financial concerns, ballot position, and voter registration obstacles should not play any part in determining our judges, we also believe that merit selection is the better way to avoid these potential pitfalls inherent in judicial elections and achieve a fair, qualified and impartial judiciary.
, judicial elections
, Martin Brinkley
, North Carolina
, partisan elections
, Tom Apodaca
Judicial retention elections are a vital part of both Pennsylvania’s current system and merit selection, the system favored by Judges on Merit. Through them, the people make their voice heard. However, it’s important to remember that though we have the power to remove judges, we ought to wield it wisely, evaluating our judges based on their legal philosophy as a whole, rather than on a handful of politically contentious decisions. Gavel Grab’s recent piece focuses on efforts to remove several Justices from Florida’s Supreme Court and draws our attention to a study trumpeted by Tea Party groups, who advocate for the Justices’ dismissal. Though published in 2005, the study has recently gained traction as these groups look to justify their efforts to remove several members of the Court. This study, indirectly funded by the National Association of Manufacturers through the American Justice Partnership, focuses on a handful of decisions (eleven over the past thirty years) to unfairly label Florida’s Supreme Court as ‘Activist.’
It is important to remember that we ask judges to make decisions not on what is politically popular but according to the law. Much of the anger aimed at Florida’s Court comes from a recent ruling that barred a state referendum on federal health care legislation. However, it is a mistake to remove judges due to occasional unpopular decisions. The best judicial philosophies demand that judges make unpopular decisions if what is popular is contrary to the law or the facts. It is vital we evaluate judges based on their record as a whole, rather than focusing on a handful of decisions. Moreover, the involvement of NAM is troubling. Whenever any one group begins to play an outsized role in judicial elections, it creates the danger of bias when that party, or those it represents, comes before the bench. Judges must be held accountable, it is true, but they must also be allowed to impartially apply justice, even if we disagree with the result. Our vote “should be cast based on honest research, not on partisan gamesmanship,” as Gavel Grab writer Charlie Hall points out, and we urge Floridians to cast their judicial votes accordingly.
Tags: Gavel Grab
, impartial courts
, judicial elections
, judicial independence
The National Institute on Money in State Politics released a report on June 14, 2011, titled “Louisiana Courts of Appeal: Open Seats Much Sought; Incumbent Seats Rarely Fought,” by Linda Casey.
The report indicates that campaign contributions for the 2008, 2009, and 2010 Louisiana Courts of Appeal elections came primarily from lawyers, law firms, lobbyists and candidates themselves. These sources combined supplied sixty-three percent, sixty-eight percent, and fifty-six percent of all funds in 2008, 2009, and 2010 respectively. Similarly, in contested races, candidates received sixty-one percent of funding from these same top donors. For self-funded candidates, spending over the three years added up to almost $1.4 million. Meanwhile, lawyers and law firms donated $1.5 million to campaigns across the board.
These top two funding sources are of particular importance to PMC. First, when candidates are expected to contribute significantly to their own campaigns, those with less money but potentially better qualifications are prevented from entering the race. As a result, the public unknowingly loses the opportunity to have a fairer and more qualified judiciary. Second, when law firms and lawyers donate nearly forty-five percent, $1.1 million, to candidates running for an open seat, elected judges risk pressure from donors regarding decisions and, even if they resist that pressure, public skepticism of impartiality, if not outright distrust. Raising money for campaigns is a problem in all states that elect judges. By taking money out of the equation, Merit Selection increases public faith in the judiciary and gives qualified candidates, who could not otherwise afford to, a better opportunity to reach the bench.
Tags: campaign contributions
, judicial elections
, National Institute for Money in State Politics
Across the country, states continue to grapple with how best to ensure an independent and impartial judiciary. Two examples demonstrate why Merit Selection offers a better way to select judges.
Last week, the North Carolina House of Representatives voted 67-51 to restore partisan labels to judicial races. As the Charlotte Observer reports, ”The main justification for the change is that party labels help voters make decisions.” But this rationale is contrary to the goal of selecting an impartial judiciary.
While it may be true that voters who lack the time, interest or opportunity to research judicial candidates may need “help,” offering a cheat sheet based on party politics offers little in the way of helping to select the most qualified judges. Rather than expanding public education, encouraging a reductionist “vote democrat/republican” does the opposite. The North Carolina legislators fail to realize that choosing judges is not just about making a decision but how to best make that decision. When citizens vote for judges based on parties, they may find it easier to vote but that does not make for a strong judiciary. Nor is Republican Representative Paul Stam’s statement that at least primaries “did a fairly decent job of weeding out the bad ones” particularly reassuring. We shouldn’t just “weed out the bad ones,” we should use a system that is designed to choose the good ones.
In New Mexico, anger over alleged corruption involving governor appointed judges has ignited the passion of some who want the state to return to partisan elections. The author believes that party affiliations affect how judges decide cases and argues that voters therefore are justified in basing their judicial selections on party politics. However, he misses the point: judges should not base their decisions on private political affiliations but on application of the law and careful evaluation of the facts. Elections perpetuate rather than solve the problem of judges being swayed to decide a case based on political or partisan views.
Merit Selection reduces the influence of party politics by allowing anyone to apply to be evaluated by the nominating commission. No longer would partisan primaries determine the two candidates who compete for a judicial seat. While no judicial selection system is perfect, the real question is the system’s end goal. Rather than simply putting judges on the bench, Merit Selection is designed to get the most qualified, fair,and impartial judiciary.
Tags: Charlotte Observer
, Merit Selection
, New Mexico
, North Carolina
The Times Leader reports that for the six seats available on the Luzerne County Court of Common Pleas, five of seven candidates have secured dual-party nominations. The lucky five, in the order they will appear on the ballot, are Joseph Sklarosky Jr., Michael Vough, Fred Pierantoni, Lesa Gelb and Jennifer Rogers. Number one on the ballot will be Richard Hughes, the recipient of the most Republican votes and last will be Democrat Molly Hanlon Mirabito, who has the advantage in a county with more registered Democrats than Republicans. Susan Kolesar, a supporter of Gelb, professes that “it is really anybody’s game to lose,” but notes that the two single-party candidates will need to “spend a lot of money” to get a seat.
However, beyond a few standard election determinants – ballot position, party registration, campaign spending – dual-party nominees have a “distinct advantage.” Political consultant, Ed Mitchell says, “In the 20 years I’ve been doing judicial campaigns in Luzerne and Lackawanna counties, I’ve not seen anyone who won dual party nominations in the primary not get elected to the bench in the General.” Likewise, Professor David Sosar agrees that while “‘theoretically possible’ for one of the dual nominees to lose, [defeat is] ‘highly unlikely.’”
Mitchell explains the trend by the high number of straight-party voters. In the municipal general election of 2009, 57.2 percent of Democratic and 38.4 percent of Republican voters cast a straight party ballot. Professor Chris Borick elaborates: candidates who appear on both tickets can collect the straight-party votes, which “boosts the chances of winning.”
Ultimately, election criteria yet again depend on factors unrelated to qualifications. Securing a dual-party nomination in a primary in which few citizens vote and independent and minor-party voters cannot participate fails to measure up as a deliberate and intelligent decision-making process. Instead, Merit Selection can achieve a fair and impartial judiciary by focusing on qualifications instead of political gaming.
Tags: Chris Borick
, David Sosar
, Ed Mitchell
, Fred Pierantoni
, Jennifer Rogers
, judicial elections
, Lesa Gelb
, Merit Selection
, Michael Vough
, Molly Hanlon Mirabito
, oseph Sklarosky Jr.
, Richard Hughes
, Susan Kolesar
, Times Leader
The race for Wisconsin Supreme Court Justice finally ended on Tuesday when Joanne Kloppenburg conceded defeat after a recount, but the “ugly, money-soaked race” has left some questioning the use of judicial elections. Kloppenburg herself expressed hope that the election would be a “wake-up call” that the system needs improvements, but an editorial in the Wisconsin State Journal goes further and calls for the “extinction” of judicial elections.
The editorial argues that the recent election demonstrates the need to switch to merit selection of judges.
Judicial elections in Wisconsin are nonpartisan, but the race between Kloppenburg and Justice David Prosser became a referendum on collective bargaining – a clearly partisan issue. In addition, special interest groups brought millions of dollars and negative ad campaigns into the race. In explaining the need for merit selection, the editorial points out the differences between judges and other elected officials:
Unlike lawmakers and governors, our top judges aren’t supposed to represent constituencies or cater to the whims of the public. Unlike other elected officials, our top judges are supposed to be impartial and independent. But judicial elections are turning our best judges into the worst of politicians.
We agree. Merit Selection is the best way to take judges out of the business of politics, get money out of the judicial selection process, and ensure fair and impartial courts.
Tags: JoAnne Kloppenburg
, judicial elections
, Justice David Prosser
, Merit Selection
, Wisconsin State Journal
, Wisconsin Supreme Court