The state legislature returns to business next week, and one of the items still pending before the House Judiciary Committee are the Merit Selection Bills (H.B. 1815 and H.B. 1816). To start the constitutional amendment process — which will culminate with the people voting on whether to change how we pick appellate court judges — the House Judiciary Committee must first
vote the bills out. This would send the bills to the full House for consideration. Please contact members of the House Judiciary Committee, tell them you support Merit Selection, and ask them to vote the bills out. Remember, this is a critical step to getting this issue on the ballot so the people of Pennsylvania can decide whether it’s time to change how we select appellate court judges.
Tags: House Judiciary Committee
, Merit Selection
The Miami Herald has reported that Florida’s Judicial Nominating Commission has adopted a policy that bans members of the commission from financially contributing to or actively participating in any campaigns for state judicial elections. This measure prevents the commission, which compiles a list of candidates from which the governor must select his appointees for appellate judicial seats, from entangling itself in races for local office or retention elections in which the commission has no role. Supporters of the measure pointed out that such involvement in campaigns creates an appearance of impropriety, and that commission members should refrain from being active in lower
court races in the event those judges are eventually nominated to the Supreme Court.
Opponents produced a compromise measure that would have merely prevented commission members from explicitly using their positions to support campaigns. The commission rejected this proposal.
We believe that a detached, politically-disinterested nominating commission is essential to the functioning of an effective Merit Selection system. We also believe that commission members, like judges, should not become mouthpieces for political causes or allow their own leanings to jeopardize the public standing of the judiciary. As such, we support the recent resolution of Florida’s Judicial Nominating Commission, and hope that if the people of Pennsylvania get the chance to vote for Merit Selection, that any future nominating commissions are governed by a similar code of conduct.
An editorial in the LA Times endorsing certain incumbent judges argued that the election of judges is “most definitely different” than other elected officials. Specifically, the editorial acknowledges that the mark of a good jurist is not popularity, but the ability to be fair and impartial in their administration of justice and interpretation of the legal code. Judges cannot be effective unless there is sufficient independence in the system that “they can preside over cases without seeing each big-moneyed litigant as a potential donor or each losing lawyer as a revenge-seeking challenger.”
Although the editorial does not go so far as to argue that popular election of judges should be replaced by another mode of judicial selection, we believe that these arguments go to the core of the need for merit selection. Because judges are substantively different than other elected officials, it follows that they should be selected differently. Judges fill a different role than members of the legislative and executive branch and must not allow themselves to be swayed by outside interests. In order to be effective, judges must be free from the
pressures of politics, and replacing popular elections with merit selection would be a major step toward accomplishing that goal.
An Oregon committee led by retiring Chief Justice Paul De Muniz will study the feasibility of changing the way Oregon’s appellate judges are selected. Currently, Oregon judges are elected in non-partisan elections. The committee will consider a number of alternatives, including merit selection.
While Oregon is not known for particularly nasty judicial elections, judges are still required to campaign for their seats. That means that they must raise money and seek endorsements. In today’s era of the unlimited of super PAC money, judicial campaigns threaten the appearance of impartiality on the part of judges. “All it takes is one hyper-politicized contest in Oregon, or one judicial election hijacked by outside interest groups, to undermine the credibility of the entire state justice system,” De Muniz said.
Any change to the Oregon judicial selection process would require an amendment to the state constitution,
which must be passed by popular election. We hope that the people of Oregon will get the chance to decide whether they want to make a change.
The Sunday Currents Section of the Philadelphia Inquirer
features a letter to the editor (scroll to the bottom) from PMC. The letter responds to last week’s op-ed by Professor Chris Bonneau, which purported to be a critique of Merit Selection but which really only raised questions about retention elections.
PMC pointed out that Merit Selection brings about real results that are desired by the people: “it is beyond dispute that merit selection, by eliminating the need for judicial candidates to raise funds from litigants and lawyers who may come before them, stops the flow of campaign money from those who may later be in the courtroom to the future judges who will decide their cases.” PMC further explained that the retention elections Prof. Bonneau criticizes are part of Pennsylvania’s current elective system: all Common Pleas and Appellate Court judges are elected for ten year terms and then may stand for retention in uncontested, nonpartisan elections every ten years thereafter until they reach the age of mandatory retirement.
The key point PMC makes is this: “Pennsylvanians. . . deserve the facts about elections and merit selection,” and they deserve the opportunity to vote in a referendum election about whether to change the constitution to implement Merit Selection for the appellate courts. PMC wants the legislature to let the people decide this question, and we want the people to have good information and facts on which to base this decision.
Tags: Chris Bonneau
, judicial elections
, Merit Selection
, Philadelphia Inquirer
Judge Nels Swandal of the Montana District Court has come under fire for a letter he wrote soliciting donations on behalf of Judge Laurie McKinnon. Judge McKinnon who is campaigning for a seat on the Montana Supreme Court, acknowledged receipt of the letter, but declined to comment on its contents. She stated that she did not believe that the letter would jeopardize Judge Swandal’s ability to be fair or impartial.
In the undated letter, Judge Swandal referenced his own failed 2010 campaign for Montana Supreme Court and noted that “money was one of the most difficult aspects of the campaign”. The letter further stated that he “would be grateful if [donors] could generously give what [they] can”. The McKinnon campaign has acknowledged that it received, reviewed and forwarded the letter as a fundraising effort.
The Montana Code of Judicial Conduct expressly prohibits “soliciting or collecting money on behalf of a judicial candidate”. Complaints regarding alleged violations of the Code of Judicial Conduct are brought before the Judicial Standards Commission. Head
of the Commission, Susan Parshall stated that she has seen a copy of the letter, but that she cannot disclose whether a complaint has been filed. If a complaint is filed, the Commission will initiate an investigation to determine whether there has been any wrongdoing and what, if any, disciplinary actions are appropriate. Sanctions range from a private admonition to removing the judge from office.
By continuing to elect judges, we will continue to find ourselves in complicated situations such as this. It’s time to get judges out of the fundraising business, and the best way to accomplish that is through implementation of a merit selection process.
The Knoxville News Sentinel has endorsed a plan that would preserve Tennessee’s system of judicial Merit Selection by amending the state’s constitution to reconcile its language with the system. Tennessee’s Merit Selection system has been in place for decades. Since the state constitution provides that its Supreme Court justices “shall be elected by… voters”, the system’s constitutionality has rested on the argument that retention elections meet this requirement. As challenges to this argument and alternative judicial selection proposals occasionally arise, the state’s Governor, Lt. Governor, and House Speaker have all called for a constitutional amendment that would lend “clarity” to the debate.
The News Sentinel wonders, “why not confirm by constitutional amendment the current system that has proven to be workable?” The piece adds that “[p]opular election of the state’s judiciary is fraught with danger…” since “a popular vote… gives [justices] some burdensome obligations to special interests that have far too much influence in elections.” The editorial then elaborates that “justices must consider the law before them, not the special interests that bankrolled their election.” Finally, the state’s Lt. Governor bluntly clarifies that “we don’t want Supreme Court justices running for office.” We agree that a judge’s
proper role is that of an unbiased arbiter, and not that of a politician focused on currying favor with voters.
An editorial in Tacoma, WA’s News Tribune warns its readers against the potential impact of the controversial Citizens United decision and the subsequent proliferation of SuperPACs on the state’s judicial elections. The piece describes how the decision removed long-standing restraints on campaign contributions from moneyed interests, and made no delineation between political and judicial elections. It then posits that “[i]n states that insist on using popularity contests to pick their judges, the threat to an impartial judiciary is obvious.”
The News Tribune portrays judicial elections in Washington as traditionally “quiet affairs”, generally free from Caperton v. Massey-style “influence-buying” or from candidates injudiciously advertising their positions on political issues or legal controversies. What makes Citizens United so dangerous, the paper argues, is its potential to turn the focus from judicial qualifications to each judge’s political stances. As the piece deftly illustrates, “[p]romises to rule in a particular way are the opposite of justice.
All litigants deserve judges who haven’t made up their minds before hearing the cases.” The editorial concludes that
[t]he ultimate protection lies with Washington’s citizens. If voters don’t see the fundamental difference between judicial and political races, that difference will fade. Our courts will wind up on the auction block, with justice sometimes going to the highest bidder.
We agree with the News Tribune’s assessment, and hope that more states will consider switching to systems of Merit Selection, so that the unlimited campaign contributions of Citizens United will not be able to directly impact each state’s judiciary.
In Friday’s Texas Tribune, political watchdog group Texans for Public Justice decried the state’s system of partisan judicial election as fostering conflicts of interest and unprofessionalism amongst the judiciary. The group’s head, Craig McDonald, argued that Texas’ judiciary “gets 40 to 50 percent of its campaign money from the very people who are practicing before that court,” adding that “[o]ur judges act as if they’re…more politicians then they are judges in many respects.” In particular, McDonald lamented the tendency of party affiliation to draw judges into “the same ideological battles fought by candidates seeking legislative office”. McDonald has proposed that Texas switch to
an appointed judiciary, echoing Texas Supreme Court Chief Justice Wallace Jefferson’s earlier call that appointments would keep judges from bending to “political winds”. Jefferson expressed a firm belief that “a justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted.”
The Tribune piece then highlights some examples where partisan elections and the electorate’s lack of information about judicial candidates led to very questionable election results, quoting a University of Texas law professor that “this kind of political wrangling lower[s] the overall quality of the judicial system”.
Texas is one of a handful of states that elect all judges via a system of partisan elections, a group that includes Pennsylvania. We hope that the people of these states, and particularly Pennsylvanians, will be given the opportunity to decide whether there is a better way to select appellate court judges.