judgesonmerit.org

Guest Post by PMC & PMCAction Executive Director Lynn Marks

If you read any post on www.judgesonmerit.org, please read Moving Forwardposted by outgoing PMC & PMCAction Deputy Director  Shira Goodman.  It sums up – in vintage Shira persuasion – the challenges of working for constitutional change.  Regular readers have seen Shira’s posts

since the blog’s inception.   We have been fortunate to have her on our “lean and mean” team.  Shira has been a gift to

the fair courts movement – both in Pennsylvania and nationally.

It is not easy to keep pushing for reform day after day when sometimes it seems elusive.  But if we don’t keep plugging away, only one thing is clear:  meaningful change will never happen.  We invite you to continue reading, to send in posts of your own, and most importantly, please spread the word that Pennsylvanians deserve to have the most fair and impartial courts possible.  We welcome all your suggestions, comments and critiques .  We need  – and want — you on the Reform Team.

Today is my final post as Deputy Director of PMC and PMCAction.  For the last ten years, I have worked with terrific leaders and partners to enable the public to decide whether there is a better way to choose appellate court judges.  I am convinced that Merit Selection is that better way and that, given the opportunity to vote on the question, the people of Pennsylvania would agree. To date, our leaders in Harrisburg have not given the people the right to decide the question.

Change is slow, especially constitutional change. That is appropriate; it should be difficult to amend the constitution.  Change should only occur after dialogue, debate and education, followed by a public referendum.  The trouble here is that those who oppose change fear the dialogue, debate and ultimate vote.

It is easy to do nothing and complain about the rising costs, increasing partisanship and growing divisiveness of judicial elections.  It is easy to sit back and opine that contributions to judicial campaigns must affect judicial decisions without working to change the system.  It is easy to decry the decreasing public  confidence that our courts are places

of fairness and impartiality where all can come for justice. 

What is hard is to act. To work every day to educate, publish the facts, and make a case for change.  This is the hard work that PMC,PMCAction and the Reform Coalition are engaged in.  We are committed to continuing that work until the leaders in Harrisburg give the public the chance to decide for themselves whether there is a better way to choose our appellate court judges.

Although I am leaving PMC and PMCAction, I am not leaving the growing group of Pennsylvanians who want change.  I will continue to support the work of the Reform Coalition, and I look forward to the day when this blog is advertising an upcoming public referendum on amending the

constitution to change the way we choose judges.  That day will come.

“Most everyone would agree that the best justice system is one in which justice cannot be bought.” Today’s blog post

in the Spencer Daily Reporter emphasizes the importance of Merit Selection.

Iowa currently has a Merit Selection system.  However, there is a recent campaign to not retain Judge David Wiggins.  Three years ago Judge Wiggins joined

a unanimous court in a decision concerning gay marriage.  ” Judges must make tough, unpopular decisions when the law requires it.”  The post explains that if a voter wants to vote against a judge for legitimate reasons, such as poor temperament or bias, then that is acceptable, however to vote against retaining a judge “only because one does not agree with one controversial opinion that judge joined three years ago does nothing but throw our justice system under the bus.”

We agree that judges should not be making decisions based on what is popular or politically expedient.

Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts have written an article in the Legal Intelligencer (subscription required) explaining the need for Merit Selection

at the appellate level in Pennsylvania. Judicial elections have become increasingly acrimonious and expensive over the years, but the consequences of contentious judicial elections are just the tip of the iceberg when considering why judicial elections are bad for Pennsylvania.

“Traditionally, the courts have been the most trusted branch of government.” Unfortunately, that trust is fading fast. As the influence of money in judicial elections continues to grow, the public perception of judges continues to devolve “into what former U.S. Supreme Court Justice Sandra Day O’Connor called ‘politicians in robes.’” Seventy-six percent of Pennsylvanians believe that judges favor campaign contributors when deciding cases. Whether real or imagined, the perception of judicial impropriety damages the judiciary’s reputation and undermines the authority of the courts in our society.

At least part of the negative perception of judges can be attributed to the fact that judicial elections don’t always put the most qualified candidate on the bench. Well-qualified judges should be “wise, fair, experienced, and have a reputation for honesty and ethical behavior.” However, the electoral process doesn’t always prize these characteristics. “Elections reward the best fundraisers and campaigners and those with strong political connections.”

In turn, the political nature of judicial elections effectively excludes many qualified potential candidates from running for the bench. “[T]o run for judge, one needs political connections, money or access to it, and the contacts to run a statewide campaign. This virtually excludes many qualified lawyers, including those from public service, small practices and smaller counties, to name a few.”

The critical effect of these problems is that voters don’t like judicial elections. “Voters report that they do not feel able to make informed decisions about judicial candidates because of the lack of useful and easily obtainable information….”

Merit Selection would get judges out of the fundraising business and would put the focus of judicial selection back on substantive judicial qualifications. Merit Selection

would also open the field to judicial candidates from all backgrounds. Changing the way that the Commonwealth chooses judges might go a long way in repairing the damaged reputation of the judiciary and restoring the public’s faith and trust in the courts.

A 2010 poll revealed that 93 percent of Pennsylvanians would like the opportunity to vote on whether or not to change the way the Commonwealth selects its judges. The voters have spoken, and they’d like the opportunity to decide whether there’s a better way to choose appellate level judges. They should be given the opportunity to do just that.

In a recent interview, Pennsylvania Supreme Court Chief Justice Ronald Castille reiterated his support for Merit Selection of judges in order to reduce political influence on the judiciary.

The statement came as the Supreme Court is deciding several highly politically charged cases including

VoterID and redistricting.

Although he has not actively campaigned for judicial selection reform, Chief Justice Castille has been a longtime supporter of Merit Selection, going so far as to make it a plank in his platform during his 1993 campaign for the Supreme Court. “Even back then I was saying, ‘Wow, you know, this is an odd way to elect individuals who are going

to have significant control over situations in your lives or business disputes, government disputes,’” he said.

Merit Selection reduces the amount of political influence on the judiciary because judges do not need to campaign, thereby eliminating the need to fundraise or make promises to supporters.

An independent judiciary is an integral part of a well-functioning society. The judiciary acts as a check on the powers of both the legislature and the executive. In order to function effectively, judges must be free to decide cases based on the law rather than political considerations or popular will. While judges must be held accountable for their conduct, threatening removal for individual decisions is counterproductive and undermines the ability of judges to do their jobs.

In Pennsylvania, appellate judges are initially elected in partisan elections to ten year terms. After their terms

expire, they may stand for retention in uncontested, nonpartisan elections. Retention elections are an opportunity for the public to vote to retain judges based on their performance over the course of their tenure on the bench. Accordingly, judges are accountable to the voters and continue to serve at the will of the people.

However, retention should not be used as a weapon or threat to bully judges into ruling a certain way on specific cases. Judges are not politicians; they do not have constituencies, nor do they make decisions on individual cases based on political expediency.  Their role is to act as a fair and impartial adjudicator. Threatening non-retention demonstrates a fundamental misunderstanding of the role of the judiciary, undermines the court’s ability to do its job, and does more harm than good.

Additionally, an independent judiciary must be free to make decisions without regard to popular opinion. Judges do not have constituents for a reason; in order to effectively do their jobs, judges have to focus on interpreting the law without regard to whether their decisions would appeal to the masses.

This is not to say that the people are not free to express their

dissatisfaction with the judiciary or individual decisions made by specific judges. However, the appellate process is the correct mechanism to address issues with individual decisions, not campaigning (or threatening to campaign) against retention.

Recently, a Tea Party affiliated PAC issued a press release “warn[ing] that it will organize to defeat Pennsylvania Supreme Court Justice Ron Castille, a Republican, and PA Supreme Court Justice Max Baer, a Democrat, in their respective 2013 retention races, if Voter ID is not implemented in the November, 2012 General Election.” Threats like this from any group undermine the foundation of our judicial system.

Retention is a tool to evaluate the performance of judges over the course of their term, not to bully them into deciding a case in a particular way. This remains true regardless of the group that is threatening non-retention or the subject matter of any particular case.

A scathing editorial in the Philadelphia Inquirer is condemning the embarrassing state of Philadelphia’s Traffic Court. The recent arrest of Traffic Court Judge Robert

Mulgrew on charges of the misuse of public funds “marked the fourth time in less than two years that the court has been embarrassed.”

Besides Mulgrew’s misbehavior, Traffic Court Judge Willie Singletary resigned from the bench in March when allegations surfaced that he showed photographs of his genitals to a coworker. In addition to this indiscretion, Judge Singletary was caught on tape during his 2007 campaign for the bench suggesting that his campaign contributors would get favorable treatment in his court if he won the election.

These are just two of a laundry list of transgressions that have befallen the Traffic Court. Pennsylvania Supreme Court Chief Justice Ronald D. Castille took action last December when he appointed Common Pleas Court Judge Gary Glazer, a judge with a reputation for professionalism and a resume that includes experience as a federal prosecutor, to oversee the Traffic Court.

But simply appointing an overseer doesn’t address the real problem – a system that allows unqualified people to take the bench via highly politicized elections. Traffic Court judges “aren’t required to have any legal training to evaluate the law and make cogent decisions.” Furthermore, there is a widespread perception that “The Democratic Party controls elections for Traffic Court judge, so the paramount quality needed to keep that job is fealty to the party, rather than responsibility to the public.”

This problem isn’t confined to Philadelphia’s Traffic Court. Throughout Pennsylvania, judicial elections allow for the possibility that candidates who lack experience and expertise may be elected to the bench to the detriment of all Pennsylvanians. Until a judicial selection process is employed that takes into account the credentials, capabilities, and character of potential judges, the Commonwealth’s courts will continue to suffer disrepute.

State Supreme Court Justice Joan Orie Melvin’s suspension from the court due to indictment on campaign finance corruption charges has left the court split down party lines. While Justice Orie Melvin is, technically, still on the court, her inability to cast a vote creates a divide that“will effectively neutralize the Supreme Court in many cases and leave in place rulings that litigants believe are dubious at best.” The Editorial Board of The Legal Intelligencer (subscription required) has called on the court to find a solution to the problem.

The court needs to find a way to rectify the situation. “The possibility of split decisions — whether or not on party lines — proves problematic for litigants, who

may not obtain the finality they seek in the state’s highest court.” Finality from the State Supreme Court not only benefits the litigants in a specific case, but it also sets precedent for future litigants and may provide a clearer interpretation of the law for lawyers trying subsequent cases. The court has already

issued two split decisions, and with several important, high profile cases on the docket (like redistricting and voter ID), it’s as important as ever that the court operate at its full power. A split court effectively leaves it up to the lower level appellate courts to decide these cases.

“Regardless of whether the courts made the right or wrong call, no matter what side of the fence you fall on — this is not the way it is supposed to be. In no circumstance should the state’s first-level appellate court have the final say on any issue of concern to the Supreme Court. The Supreme Court is constitutionally designed to be the court of last resort in Pennsylvania and the lack of a seventh justice is impairing its ability to so act.”

The real travesty of this situation is that it didn’t have to happen. The charges against Justice Orie Melvin stem from her judicial campaign activities. If judges in Pennsylvania were chosen based on merit, she wouldn’t have been forced to engage in political activities like fundraising and soliciting votes. Now the court is forced to find a solution to a problem that never should have existed. Any resolution to this current conundrum will only treat a specific symptom of a systemic issue. The ultimate solution is to get judges out of the campaigning and fundraising businesses by implementing Merit Selection for appellate level judges in Pennsylvania.

An Arizona initiative on the ballot this fall would change the way Arizona selects its judges. According to a report in the Arizona Republic, the proposition would increase the amount of power the governor has to select judges in large counties. Currently, the way Arizona judges are selected depends on the size of the county; in small counties, judges are elected, while in large counties, judges are selected through a Merit Selection process.

The current judicial selection commission is composed of five attorneys nominated by the Bar association appointed by the governor along with ten non-attorneys selected by the governor. Both attorneys and non-attorneys must be confirmed by the Senate. Under the proposed changes, the

governor would appoint four of the five attorney members of the commission, leaving the Bar association nominating only the fifth attorney member.

Supporters of the proposed changes argue that the state Bar has too much control over the judicial selection process and that the governor is accountable to the public in a way that the unelected members of the commission are not.

Opponents argue that

the changes would “inject politics into a judicial system that must remain impartial,” according to Paul Bender, a professor of constitutional law at Arizona State University’s Sandra Day O’Connor College of Law.

Regardless of the outcome of the ballot initiative, one thing is clear. Judicial selection is too important to be ignored.   Polling demonstrates that an overwhelming majority of Pennsylvanians want a chance to make their voices heard on this crucial issue. Pennsylvanians deserve the same opportunity to go to the polls and decide whether they would like to change the way judges are selected.

Diane Rehm, of National Public Radio recently hosted Charlie Hall from Justice at Stake, Ian Millhiser from the Center for American Progress, and Scott Gaylord from Elon University School of Law to discuss “Fairness In State Courts: Electing Versus Appointing State Judges.”

Charlie Hall explained that state courts matter because they are the people’s courts.  “It’s a hugely important branch, and it’s one that most Americans just don’t think about.”  He explained how judicial elections have changed in recent years:

[S]tarting in 2000, there was an explosion of money from special interest[s], not only corporations but also trial lawyers. There was really a national battle to gain control of these courts because they decide cases worth billions of dollars.”

Further, he discussed the widespread public belief that money influences judges, “75 percent of the public believes that campaign contributions can affect judges’ decisions, and

almost 90 percent believe that judges should not hear cases involving major campaign donors.”  Hall offered this hypothetical to demonstrate the perceived impact of campaign contributions, “If we’re in for a small lawsuit or a divorce and you learn on the day of the trial that. . . the other side’s lawyer kicked in $5,000 to elect the judge and your side hasn’t. . . would you want a different judge? I think most Americans would say yes.”

To counter a listener’s criticism that merit selection concentrates power in a small elite, Hall cited studies from the U.S. Chamber of Commerce’s survey of general counsel.  He used the findings from the last ten years to show

four of the five top states and eight out of the top 10 are merit selection systems. Conversely, eight of the least trusted systems by the U.S. Chamber of Commerce, a business organization, are election systems.”

Hall explained that if “merit was as tilted as people claim, I just don’t think you could have that kind of finding year after year.”

Ian Millhiser explained that in state judicial elections many voters are uninformed, “most voters don’t know who the good lawyers are and who the good judges are. So the decisions that are frequently made at the polls wind up often not being very informed.”  Hall added to this point, “Prof. Gaylord’s own school, Elon, did a. . . poll in 2009, and 43 percent of people in North Carolina didn’t even know how judges are selected.”

To listen to the complete show, click here, or to read the transcript of

the Diane Rehm show, click here.