Archive for July, 2011

Jul 26 2011

Community Education Needed to Combat Politics in Retention Elections

Published by under Merit Selection,News

In an interview with The Iowa Independent, officials shared that fair courts advocacy group, Justice Not Politics, is “preparing for a fight to keep politics out of the retention vote.” The fight is expected to surround the retention election of Iowa Supreme Court Justice David Wiggins. Like three justices ousted in the 2010 retention election, Wiggins was part of the Court’s unanimous decision in 2009 to uphold gay marriage. Bob Vander Plaats, chief executive of The Family Leader, successfully led the 2010 campaign to vote the three justices off the bench and has indicated that conservative groups will likely turn that effort toward Wiggins in 2012. However, this time Justice Not Politics and gay rights advocacy organization, One Iowa, will be among those ready to defend with a powerful weapon: education.

“We want to get information out there about our judicial system and the purpose of a retention vote,” said Connie Ryan Terrell. “There was a lot of deliberate misinformation (about the courts) given by Bob Vander Plaats in 2010.” One Iowa Executive Director Troy Price added, “Right now, we intend to continue notifying our members of attacks on the courts, and to counter the messages from those trying to inject politics into the courts.”

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Ryan Terrell explains that judicial retention elections should be “based on how well [judges] do their job, and if they based their decisions in accordance with the constitution. It’s not supposed to be about if you agree or disagree with their decisions.” In order to protect the independence of our judiciary, the public must remember to keep politics out of retention elections.

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Jul 25 2011

Wisconsin State Journal authors Q&A on judicial reform

Published by under Merit Selection

Given the recent scandals on Wisconsin’s Supreme Court, merit selection is rapidly gaining support in the Badger State. On Sunday, the Wisconsin State Journal published a Q&A explaining merit selection to Wisconsin’s voters and highlighting the need for change, as “modern-day, ugly, hugely-expensive judicial campaigns are destroying trust in our top court” and “the quality of the court is declining because our mud-bath judicial elections favor partisan campaigners over experienced jurists.” The piece emphasizes that merit selection promotes the independence and impartiality of judges, who “are supposed to be above the fray and insulated from the whims of the majority (in order) to better protect the rights of even unpopular people.” It also emphasizes that merit selection has made the courts more diverse in places such as Arizona and that it could do the same in Wisconsin. Merit selection would also provide an important check on the governor’s power for interim appointments. The piece rejects campaign finance reform, touted by proponents of partisan judicial elections, as insufficient, given that recent Supreme Court decisions have curtailed many reforms in that area. The article ends with a plea to restore “honor and reason” to the courts by adopting merit selection.

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Jul 20 2011

Wisconsin’s Badger Herald supports merit selection

Published by under Merit Selection

Yesterday, the Badger Herald came out in support of State Senators Cullen and Schultz’s effort to bring merit selection to the the state of Wisconsin. In a spirited editorial, they criticize Wisconsin’s most recent judicial election, which turned into a referendum on Governor Scott Walker’s anti-union bill, declaring “The influence of outside groups on the elections, be it Wisconsin Manufacturers & Commerce or the union-friendly amalgam We Are Wisconsin, has no place in the realm of the Supreme Court” and that “this judicial payola should have no place in our state.”

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Judicial elections, charges the editorial, create judges who have set partisan platforms, rather than “unbiased interpreters of the law.” While the editorial acknowledged both the difficulty of amending the constitution to allow merit selection and the “danger” some critics say lies in ending judicial elections, it argues that these are far preferable to the current situation on the Court.

The editorial ends by pleading for Wisconsin to turn the state high court into “a place of prestige instead of pettiness” by adopting merit selection.

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Jul 19 2011

Arkansas Law Review Symposium on Judicial Elections: Rachel Caufield’s “The Curious Logic of Judicial Elections”

Rachel Caufield, Associate Professor at Drake University and Research Fellow at The American Judicature Society (a PMC partner), recently published an article, “The Curious Logic of Judicial Elections,” in the Arkansas Law Review Symposium Issue. Caufield expertly outlines the arguments surrounding judicial selection and describes the benefits of merit selection. She uses current research on judicial selections systems, scholastic perspectives, and historical background to inform her position. Of the many judicial selection myths that Caufield debunks, here are five that PMC found particularly interesting:

1. Justifying judicial elections based on an “almost mythical” democratic ideal finds little support from the goals of our founding fathers or the practices of other democratic nations.
2. To say that judges base decisions primarily on personal or political preferences ignores an overwhelmingly constraining force: the law.

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3. Although judicial decisions affect public policy, transforming judges into political representatives has the undesirable result of turning the judiciary into a “super legislature,” one which renders the separation of powers meaningless.
4. Despite accusations to the contrary, a 1993 study indicated that only 1% of nominating commissioners said political influences were “always part of commission deliberations;” 48% said they never were.
5. Recent research based on judicial evaluations and surveys demonstrates that “merit selected judges are superior in terms of fairness, competence, and overall quality.”

PMC applauds Caufield for her articulate and well-researched contribution to the Arkansas Law Review and agrees that merit selection is the best option for choosing our judges.

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Jul 15 2011

New article looks at the ethical implications of lawyers’ donations to judges campaigns

Published by under Merit Selection

Gavel Grab features a review of an article written by Professor Keith Swisher of the Phoenix School of Law. Swisher’s piece, published in the Georgetown Journal of Legal Ethics, looks at the ethical implication of the widespread practice of lawyers contributing to judicial campaigns.

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Swisher concludes that campaign contributions do affect case outcomes, citing a 2009 study by Professor Joanna Shepherd that used a model comparing retiring and nonretiring judges to show that campaign contributions did indeed affect judge’s votes. He also cites a 2007 study by Margaret Williams and Corey Ditslear that shows a substantial minority of judges on the Wisconsin Supreme Court appeared to change their voting in exchange for campaign contributions. Finally, he cites a study by Chris W. Bonneau (a staunch supporter of judicial elections) & Damon Cann, which found a “quid pro quo” relationship between contributions and how judges voted in Michigan and Texas.

Given this, Professor Swisher argues that campaign contributions to judges disturb the administration of justice and widen the “wealth rift” between wealthy and poor litigants. He also argues that, under several ethical models, it is immoral for lawyers to contribute to judges. However, he also notes that due to an attorney’s obligation to their client, it may be immoral for an attorney not to donate to campaigns.

Swisher advocates limits on attorney contributions to judges, the use of Caperton-style recusal motions to disqualify judges, research into the opposition’s campaign contributions, disclosure by lawyers of their contributions to presiding judges and even withdrawal in certain cases. Professor Swisher’s article underlines the problems with judicial elections, and highlights the need to work for change.


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Jul 15 2011

Something We Should Do in the Meantime

A Times-Tribune editorial asserts that although merit selection is the best way to select judges, strict disclosure requirements and clear recusal rules are necessary in the meantime. The author remembers the state Supreme Court race of 2009 in which politics played a central role. During the campaign, there was much concern that Democratic or Republican success in legislative redistricting depended upon the political party of the elected judge. “After such partisan wrangling during campaigns, the public is expected to believe that the judges who emerge from it are not affected by it.” The article predicts that these issues will come up again later this year if the Supreme Court rules on legislative redistricting. Furthermore, with the influx of special interest money, the independence of the judiciary – or at the very least public confidence in that independence – is threatened. “Until Pennsylvania finally gets around to merit selection, it should mandate comprehensive disclosure as the second-best option.” We agree.

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Jul 14 2011

Count Phil Hands among those calling for change

Published by under Merit Selection

The recent fracas on the Wisconsin Supreme Court has given cartoonist Phil Hands plenty of material for his political cartoons. However, even he isn’t happy with his muse. In yesterday’s edition of the Wisconsin State-Journal, in “Clowns on the Court” (with cartoon, found here) he criticizes the partisan divide on the court, writing “The court is politically polarized, resorts to name calling in its official opinions and has even seen physical violence break out in its chambers.” He blames the court’s current state on Wisconsin’s judicial elections, “soaked with special interest money that taints the justices in the eye of the public.” Moreover, he highlights another flaw in Wisconsin’s system: the governor has complete discretion to appoint who he wishes to the court in the event of an interim appointment, leaving the system vulnerable to abuse. His solution? Merit Selection. Merit selection, he suggests, would keep special-interest money out of the courtroom and restore public confidence, while providing a check on the unilateral power of the governor to appoint whoever he wishes.

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Jul 08 2011

Public Distrust in Judiciary a Cause for Concern

The recent events in Wisconsin have everyone talking, and no one should like what the public has to say: it has lost respect for and trust in the judiciary. Public faith in the courts is the very basis of our justice system. When allegations of physical altercations arise and enormous amounts of judicial campaign spending create cause for concern, courts need to defend their independence, impartiality, and integrity.

Wisconsin state senators, Tim Cullen (D) and Dale Schultz (R), have offered merit selection as the means by which the judiciary can regain public confidence. The senators said in an interview with Steve Walters that they understand how the public might not trust its courts. Sen. Cullen said, “I no longer trust the court on the merits of the law. I know that sounds pretty inflammatory, but if I was appearing in a case before the Supreme Court and my opponent had spent a tremendous amount of money on one of the justices, I wouldn’t feel comfortable with that court.” Sen. Schultz similarly blames in the influx of campaign contributions for public distrust in the courts: “With all the money in the races it encourages justices to be activists on both sides. This puts into play whether the decision is based on who gave what or spent money on their behalf. Can we survive in this country when people know that incentive is there? ”

Others fault hostility among the justices for the distrust of the courts. “Given the nature of the issues faced by the Supreme Court, intellectual conflict is understandable; hand-to-hand combat is not acceptable and demeans the court.” The editorial suggests that a unanimous apology from the court would be an important first step, but also says, “We fear that the court has reached a level of dysfunction beyond repair.”

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The concern is well placed. When people go to court and wonder if campaign contributions influence their judge’s decisions, how can they trust the judiciary? When political hostilities come to blows, how can the public believe in the integrity of the judiciary? A restoration of public confidence in the courts is sorely needed. Merit selection can refocus the conversation around the ability of judges to impartially apply the law and renew public faith that a decision will be a fair one.

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Jul 05 2011

Wisconsin State Senators propose amendment to move WI to merit selection

Published by under Merit Selection

This past Thursday, Wisconsin State Senators Dale Schultz (R) and Tim Cullen (D) introduced a constitutional amendment to replace Wisconsin’s State Supreme Court judicial elections with merit selection. Once a model court, Wisconsin’s court has drawn criticism in recent weeks as allegations have surfaced that Chief Justice David Prosser choked fellow Justice Bradley during an argument. These allegations follow a bitter judicial race between Justice David Prosser and Assistant A.G. Joanne Kloppenburg that drew millions in out-of state spending. “We are concerned about the way third-party special interests have poured millions of dollars into Supreme Court elections to get their preferred candidate elected,” Cullen said. “Looking down the road, we don’t see this process getting any better.” 

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            The senators also hope that merit selection will create a more decorous atmosphere on the Wisconsin Supreme Court. Speaking on Missouri’s merit selection system, Professor Doug Abrams said, “It has produced seven very capable, very qualified judges. And we never see something happen here like what has happened in Wisconsin.” Justice Mary Russell, a member of the Missouri Supreme Court concurred. “We don’t agree on everything, but we are all friendly.” If the amendment passes the legislature for two consecutive sessions, it then goes to the voters for ratification. While there are steep hurdles still to be jumped, we hope that Wisconsin voters will be allowed to decide if there’s a better method of selecting judges.

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Jul 01 2011

Alabama Chief Justice Cites Judicial Elections as a Reason for her Resignation

This week, Alabama State Supreme Court Chief Justice Sue Bell announced her resignation effective August 1st, 2011. In her statement, she cited the failure of AL courts to modify their judicial selection system as one of her reasons for leaving. “Alabama appellate court justices should be selected either on merit, and retained or rejected by a vote of all the people, or at least cam­paign without the added po­litical emphasis of party la­bels,” declared Cobb. According to former president of the Alabama State Bar Association, J. Mark White, “She tried every way possible, along with the bar, to get a more civilized and economical way to select our judges.”

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The numbers representing campaign costs in Alabama’s partisan elections are astounding. A study conducted by Justice at Stake revealed that AL Supreme Court candidates raised over $40.9 million in the past decade. According to a Thomson Reuters News & Insight article, “Cobb herself received $2.62 million in contributions during the 2006 Alabama Supreme Court election, a multi-candidate election that was the costliest state judicial race ever, with candidates raising a total of $13.5 million, according to Follow the Money.” In her resignation, Cobb explained that this method of judicial selection “perpetuate[s] the perception that judges are selected more on campaign contributions than on ability.”

Calls for judicial selection reform can be heard throughout the country. New York recently changed their recusal standards in an effort to restore public confidence in judicial impartiality. An impassioned editorial beseeches Alabama to do the same: “If anything, Alabamians should question judges’ impartiality even more than people do in other states, and the numbers from national polls already are high. In a Harris Poll last June, 71 percent of those surveyed nationally believe campaign contributions to judges have some or a great deal of influence on their decisions.”

The Justice at Stake survey lists Pennsylvania second after Alabama in campaign contributions, receiving around $21 million. However, recusal rules alone will not solve the problem. PMC agrees with Chief Justice Cobb that judges should not be obligated to raise millions of dollars to earn a seat on the bench and worries about qualified candidates who may be dissuaded by the need to raise enormous amounts of money. Cobb explained, “Another statewide race at this point in time would require me to raise millions of dollars while constantly endeavoring to appear and remain impartial and would require me to sacrifice precious time which I could be spending with my family.”

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