The Eufaula Tribune has written an editorial decrying the current state of Alabama’s judicial politics. The paper reported that it received a note from Alabama Supreme Court Chief Justice Chuck Malone stating that “For the first time, we have a completely Republican Supreme Court and I am honored to be able to serve the people of Alabama as Chief Justice of that court and to ensure that the rule of law is upheld in our state.” All nine members of the state supreme court are Republican. As the editorial says:
Such a partisan court is troublesome, and not because all nine justices are Republican. We’d say the same thing if they were all Democrats. In actuality, our Supreme Court is more skewed than the oft-liberal Ninth Circuit Court of Appeals in San Francisco. The words “court” and “skewed” should never be used together.
Alabama is one of six states, Pennsylvania included, that elects all its judges in partisan elections. Alabama had the second-most expensive state supreme court elections in the nation in 2010. The Tribune further reported that:
Since 1993, special interest groups vying for control of the court have contributed more than $54 million – nearly twice the amount in any other state – to candidates for the Alabama Supreme Court. In that period, the once Democrat-controlled nine-member court has become all-Republican.
This flood of contributions and hyper-partisanship undermines the notion of impartial courts wherever judicial elections are the norm. Merit Selection is designed to produce the most fair, impartial and qualified courts.
We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom. Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts. A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”
The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality. “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.”" The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign. Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to that judge by the attorney or their firm within the past five years. The judge would then have to recuse from the case if a motion to do so was filed by any party to the case who did not make a contribution.
The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.” The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary. But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process. That way is Merit Selection.
, Madison County
, Merit Selection
, New York Times
The Pittsburgh Post-Gazette reports that controversy is brewing about Supreme Court Justice Max Baer’s comments about the Supreme Court’s forthcoming opinion in the redistricting case. The Court issued an order in the case late Wednesday, but the opinion is not expected until some time next week. Justice Baer made comments to the press about what he anticipated would be included in the opinion and also opined that due to timing constraints, it was likely that the 2001 districting maps would control the upcoming election. The State Republican Party has issued a statement criticizing Justice Baer for commenting on the case in advance of the opinion being issued and charging that he has violated the Code of Judicial Conduct, which prohibits judges from speaking out on pending cases.
This incident raises the issue of whether judges should communicate about their decisions outside of their written opinions. We believe judges should let their opinions speak for them. Judges and courts write opinions for the very purpose of explaining their decisions; this provides clarity and equal access to the decision and the reasoning underlying it. The opinion should be the only way judges speak to the public about their decisions.
The Legal Intelligencer (subscription required) joined Pennsylvanians for Modern Courts by endorsing Merit Selection of Pennsylvania’s appellate judges. The endorsement followed in the wake of the grand jury investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for allegedly using state employees to work on her political campaign for the Supreme Court. The Intelligencer argued that:
Electing judges the same way we elect executive and legislative branch officials ignores the fundamental difference between judges and other officials. Judges are not supposed to represent constituencies, be responsive to popular will or partisan pressure, or make promises about what they will do in office. By contrast, legislators and executive officials are expected to do these things. The result of electing judges like we elect other officials is that the public believes — as Justice Sandra Day O’Connor has said — that judges are just politicians in robes.
The paper noted that the skills required to get elected to the Commonwealth’s appellate courts, fundraising, gaining the support of special interest groups, and the receiving the backing of a political party, are not “related to one’s qualifications to serve on the bench.” The editorial stated that Pennsylvanians deserve a fair and impartial judiciary where attorneys and their clients can be confident that the law, not their opposing party’s campaign contributions, will decide the case.
The answer is merit selection for the appellate courts. Merit selection will stop the flow of money from lawyers, law firms, businesses, unions and special interest groups to the judges who will later be deciding their cases. Merit selection will focus on the qualifications of those who wish to serve on the appellate courts and ensure that we have experienced, wise, ethical judges staffing our appellate bench. Merit selection will provide opportunities for talented lawyers from all over Pennsylvania — regardless of race, ethnicity, gender, political connections or access to big funders — to reach the bench. Merit selection will protect the dignity and integrity of our courts and restore public confidence in the judicial branch. Judicial elections not only cannot do this but undoubtedly undermine public trust and confidence in the judiciary.
Currently, Merit Selection legislation is pending before the legislature. If passed, the voters of Pennsylvania will eventually be able to decide whether to amend the state constitution and have our appellate judges chosen based on qualifications, not money or politics. Please contact your state representatives and senators and tell them now is the time to pass Merit Selection.
Both North Carolina and Alabama are looking to Merit Selection as a means of ensuring that judges are selected based on qualifications, not money or partisanship.
North Carolina pioneered publicly-funded judicial elections but fears for the future of that system after the US Supreme Court struck down Arizona’s similar “matching funds” public financing scheme. The News and Observer argued that the state should avoid politically-charged judicial elections of other states where “judicial offices were seen to be for sale to the highest bidder, who was almost certain to be an interest group buying favorable judgments for its members.” A new plan, proposed by the state’s Bar Association, is based on confirmation and retention elections whereby the state’s voters would decide on judges nominated by the governor based on the advice of a diverse panel.
This proposal is not simple and it is not ideal, but there is no ideal way to choose our judges, and the Bar’s proposal is clearly better than any of the alternatives. . . [O]ur legislators need to give serious attention to the complex problem of judicial elections and to the Bar Association’s proposal for addressing it.
Alabama was the home of the nation’s most expensive state supreme court elections from 2000-09. The Dothan Eagle reported that in this year’s election, voters will have almost no choice as all but one of the state’s incumbent Supreme Court justices and all of its appellate court judges are running unopposed. As the Eagle explained:
Alabama’s judicial races have become extraordinarily contentious and, by extension, have grown to become the most expensive judicial races in the country. If the depth of the acrimony in the campaigns doesn’t raise questions about how blind justice might be with any of the candidates on the bench, then the process itself should. A contest that requires judicial candidates to claim allegiance to a political party and all its philosophical baggage to seek an office that requires objectivity is flawed from the start. Alabamians should insist that positions on the state courts be treated as judicial appointments instead of political offices.
We hope that the citizens of Alabama, North Carolina, and Pennsylvania will get the opportunity to choose a better way to select judges.
(Hat-tip to Gavel Grab)
The Chicago Journal outlined the process for judicial selection in Cook County, Illinois as follows: “The Central Committee of the Democratic Party of Cook County buys judges with the promise of votes, naming them to the party’s official slate in exchange for implicit support.” Being named to the slate is key in winning any judicial election as few voters have any information on a potential judge’s qualifications other than their party identification. The Journal called for public funding of judicial elections to reduce the corruption inherent in a system where interested parties and attorneys are able to buy favorable court outcomes each election year. The paper stated that this should be an intermediate step:
[W]e must demand that the state legislature and governor pass legislation at least to support public funding of judicial elections. Merit selection of judges would be better still, but public funding would lessen corruption immediately.
In an editorial today, the Philadelphia Inquirer urges the legislature to act on pending Merit Selection legislation. Although the paper has supported Merit Selection for a long time, the impetus for the call today was the pending investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for improper use of her judicial staff for her judicial election campaigns. The editorial first echoes PMC’s calls for Justice Orie Melvin to temporarily step down from her duties on the Court. The editorial then explains:
The allegations alone ought to be enough to shake the public’s faith in the state’s system of electing its most powerful judges.
No matter what the outcome of the inquiry into the Orie sisters, the state judiciary would not have to weather such controversy if its top judges were chosen through a merit-based system of appointment, with voters’ concurrence through nonpartisan retention elections. . . .
With the Melvin controversy bringing renewed attention to Pennsylvania’s discredited system of electing judges, Harrisburg officials should seize the moment and move ahead on judicial reform.
We agree, and we hope the people of Pennsylvania will be given the chance to decide for themselves whether there is a better way to select appellate court judges.
Tags: Justice Joan Orie Melvin
, Merit Selection
, Philadelphia Inquirer
The courts have become a football in Wisconsin’s ongoing political fights. Wisconsin’s judges, like those in Pennsylvania, are elected, and judicial elections have become markedly more contentious since Wisconsin Gov. Scott Walker’s row with the state’s labor unions last year. The Wisconsin State Journal has called for merit selection stating:
Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing. Lost in the process is the need for experience, independence and impartiality.
The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:
Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.
Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.
A poll conducted by Justice at Stake has shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today. This highlights the dangers of judicial elections. Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.
Tags: Governor Walker
, Justice At Stake
, Merit Selection
, Wisconsin State Journal
The Scranton Times-Tribune published a January 14th editorial calling on the Pennsylvania Legislature to enact merit selection of state appellate judges. This move was prompted by the delivery of a target letter to Pennsylvania Supreme Court Justice Joan Orie Melvin. The Times-Tribune echoed PMC’s call for Justice Melvin to step down pending the grand jury investigation or be removed by her colleagues. The editorial stated that:
Even if the justice is not charged, however, the case to which the target letter is related already is a cry for sweeping reform of how appellate judges are selected in Pennsylvania.
The paper reported that Justice Melvin’s campaign for the high court was the most expensive for a single seat on the Court in state history with each candidate raising over $2 million, most of which came from parties with “frequent interests in the courts” such as unions, businesses, attorneys, and political parties. The Times-Tribune cited the rising costs of judicial elections and the large spending by “ideological third parties” aimed at influencing state voters on issues other than judicial competence as the reasons why the Legislature must act now to mitigate the effects of politics and money on the state courts.
This issue has festered for years as the price of judicial elections has escalated, and ideological third parties have spent heavily to influence voters on political matters unrelated to judicial competence. No one pretends that a merit selection would be perfect. Politics never can be eradicated from the process. But politics can be mitigated, and qualifications emphasized, through a merit selection process that ends the need to raise funds, craft political alliances and rely on parties that frequently have business with the courts. Since a lengthy process is required to effect the required constitutional change, the Legislature should move quickly so that the case involving the Ories is the last of its kind.
Pennsylvanians for Modern Courts have consistently advocated for merit selection of appellate judges and ending the Commonwealth’s money-fueled, partisan judicial elections.
There has been extensive news coverage of the revelation that Supreme Court Justice Joan Orie Melvin is the target of an on-going grand jury investigation about the use of government staff for election activities. In the wake of those revelations, PMC called on the Justice to temporarily step aside from her judicial duties; PMC also urged the state Supreme Court to temporarily suspend Justice Orie Melvin if she failed to voluntarily step aside. PMC has been cited in numerous articles throughout the Commonwealth and by local radio stations.
Deputy Director Shira Goodman was quoted in The Legal Intelligencer regarding the target letter Justice Melvin received from the grand jury: “That was kind of the line for us. . . [The target letter] moved this from the realm of ‘this is kind of a sticky situation’ to ‘this is really much more serious and could undermine her ability to serve.’” Both the Pittsburgh Tribune-Review and Post-Gazette quoted PMC Executive Director Lynn Marks who stated that: “All citizens, including judges are presumed innocent until proven guilty, but judges and especially supreme court justices should not be permitted to judge others while under the cloud of such a serious investigation.”
Philadelphia Public Radio WHYY News Works also quoted Goodman in regards to Justice Melvin’s recusal from hearing cases involving the Allegheny County prosecutor who argued the previous criminal cases against her sisters: “We don’t think it’s enough. . . I think she would still be weighing in on very important questions that affect all Pennsylvanians from family matters to business questions to possibly the redistricting case and we don’t need a cloud. We don’t need questions about whether a judge. . . legitimately should be there or not.”
On Thursday, the Pittsburgh Post-Gazette echoed PMC’s call for Justice Melvin to take a leave of absence or face suspension:
Justice Melvin simply cannot go on as if this is business as usual. While her own presumption of innocence has not changed, her continuing presence on the high court does no service to the people of Pennsylvania or the venerable institution whose reputation she is supposed to uphold. Justice Melvin has already conceded half the point by recusing herself from cases involving the Allegheny County district attorney’s office. She must go further and take a leave of absence until this black cloud is cleared. If she won’t go voluntarily while the grand jury tries to connect the all-too-prominent dots of this case, Chief Justice Ronald D. Castille should use his power to convene a four-member majority of the court to suspend her.
Harrisburg Public Radio WITF also spoke to Goodman who outlined the problems with the judicial selection process in Pennsylvania: “We have a system that treats judges like politicians. They have to get party endorsements, they have to raise money, they have to curry favor with special interest groups to be able to run and succeed in a 67 county state.” Goodman went on to explain that the grand jury investigation demonstrates why elections are not the right way to choose our appellate judges.
Tags: Joan Orie Melvin
, Philadelphia Inquirer
, Pittsburgh Post-Gazette
, Pittsburgh Tribune-Review
, WHYY Newsworks