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JEWISH SOCIAL POLICY ACTION NETWORK

RESOLUTION ON MERIT SELECTION OF JUDGES

Pennsylvania is one of a few states that choose all their judges in political elections.

Races for election to the appellate courts – the Supreme Court, Superior Court and Commonwealth Court – are statewide efforts requiring large sums of money, sometimes running into millions of dollars.  Candidates seek endorsements from the political parties in each county, and also donations that typically come from lawyers who may appear before them after they are elected. Candidates lose the appearance of independence in the process.  The recent Supreme Court decision in Citizens United v. Federal Election Commission may be extended to state races, introducing corporate funding and even more potential for the real or apparent compromise of judicial candidates.

Despite the endorsements, spending and campaigning, few voters other than lawyers know much about the individual candidates or their qualifications.

Only the most qualified individuals – based on legal skill, experience, temperament and reputation for fairness, impartiality and independence – should become judges.  The system for selection of judges needs to focus on that goal.

JSPAN endorses changing the state constitution to provide for the merit selection of judges of our appellate courts through a process that avoids the need for political endorsements, campaigning or major fund raising by the candidates.

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How would you feel if you were in court and knew that the opposing lawyer [or party] had contributed money to the judge’s campaign fund?

The show’s response to the question posed sends a grave warning to the citizens of Pennsylvania and of other states that elect judges:

This is not an improbable hypothetical question, but could be a commonplace occurrence in the . . states where judges must raise money to campaign for their seats — often from people with business before the court.

Though many states have elected judges since their founding, in the past 30 years, judicial elections have morphed from low-key affairs to big money campaigns. From 1999-2008, judicial candidates raised $200.4 million, more than double the $85.4 million raised in the previous decade (1989-1998).

Because of the costs of running such a campaign, critics contend that judges have had to become politicians and fundraisers rather than jurists.

Friday’s show discusses the expected impact the recent Citizens United decision will have on judicial elections, and starts with a re-airing of the jaw-dropping 1999 investigation that focused on “justice for sale” in 3 states, Pennsylvania, Louisiana, and Texas. In what can best be described as tragic irony, the 1999 show began in Wilkes-Barre, Pennsylvania, ground-zero for the infamous Luzerne County courthouse scandal, and details the tortuous fundraising and campaign strategizing required to get a seat on the Luzerne County bench.

One of the judges whose campaign for election was profiled, Peter Paul Olszewski, was not retained for another term in the 2009 retention election, in large part because of his perceived association with Michael Conahan, now charged with masterminding the cash-for-kids scandal. The 1999 segment quoted a candidate who ended up losing her election:

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: True enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It’s a system that disturbs even the winning media consultant.

This system surely can only further erode the confidence of Luzerne County and Pennsylvania citizens who have seen first-hand the corrosive influence of money on judicial conduct.

The full transcript of Friday’s show is available in three parts, here, here and here. The latest numbers in Pennsylvania, which the show’s website attributed to Pennsylvanians for Modern Courts, reflect that a record amount of money was spent on the latest race for a seat on the Commonwealth’s highest court.

The show helps make apparent why electing judges is so problematic: unlike other public officials, judges have to resolve disputes between parties on a daily basis. The expectation is that the judges will be completely impartial and fair to both sides. But when they are forced to raise money to get their seats, and when that money inevitably comes in from the very parties that appear before those judges, the public has a hard time believing that the justice being delivered is not influenced by that money.

The solution other states have found, that we believe Pennsylvania needs to implement, is to select judges based on merit, not fundraising abilities or other factors unrelated to a candidate’s qualifications as an impartial jurist.

BILL MOYERS: Do you think that [Justice O’Connor’s] idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. . . . Nothing’s perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

The problem is not that voters can’t make good decisions; it’s that the process of electing judges is a system that values fundraising and campaigning above qualifiscations. And in that kind of system, it’s very hard to cut through the rhetoric and soundbytes to get the information you need to make a good decision.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

[O]ur courts are faced with a serious credibility crisis. After all that has recently occurred, the time has clearly come to move a merit selection amendment through both chambers because it will have widespread public support and because it’s the right thing to do. These are important steps forward on the road to reform. Let’s enact the laws that restrict the ability of special interests to unduly impact our policies and manipulate our process. Let’s put Pennsylvanians first.

We hope the members of the House and Senate recognize that the time is NOW. We are in the wake of the very recent U.S. Supreme Court decision in Citizens United v. FEC which will undoubtedly give special interests even more ability to ensure their preferred judges are elected.

It is time to put Pennsylvanians first, as the Governor said, and select judges in a non-partisan, merit-based manner rather than in the expensive partisan elections we currently have which virtually ensure that judges hear cases from parties that have contributed to them directly.

Today’s decision casts . . . aside . . . the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).

This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases.

We completely agree. In fact, in PMC/PMCAction’s press release yesterday, we made a similar argument:

Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

The simple solution is to change the way we select our appellate judges, taking them out of the campaign business altogether. Even without the inevitable flood of corporate spending on elections to come, far too much money is being spent on judicial candidates from lawyers, businesses, and political parties – the very groups that appear in court the most. Judges should be selected based on judicial ability, as in a Merit Selection system, not based on campaigning or fundraising ability.

For other takes on what this decision may mean for judicial elections, see the American Judicature Society’s response here and the Justice at Stake coalition’s here.

FOR IMMEDIATE RELEASE

Contact: Shira Goodman/Lynn Marks

Pennsylvanians for Modern Courts and PMCAction

(o) 215-569-1150; (m) 215-680-1163

goodman@pmconline.org

U.S. Supreme Court Lets the Money Roll In to Judicial Elections

Pennsylvanians for Modern Courts and PMCAction explain how new campaign finance decision will bring more money into statewide judicial elections

PHILADELPHIA (January 21, 2010) –  Pennsylvanians for Modern Courts (PMC) and PMCAction today predicted that the United States Supreme Court’s long-awaited decision in Citizens United v. Federal Election Commission will open the floodgates to direct corporate and union spending in statewide judicial elections.  The decision, focusing primarily on the right to free speech, grants corporations and unions a constitutional right to make independent expenditures in elections directly from their corporate coffers, without the need to establish separate political action committees to fundraise and spend money.  The decision invalidates the laws of Pennsylvania and 21 other states prohibiting such independent campaign expenditures. Shira Goodman, Deputy Director of PMC and PMCAction, explained, “It’s like the Supreme Court said ‘let the money roll in.’”

“But,” explained Goodman, “given Pennsylvania’s experience in the 2009 Supreme Court election, more money spent on getting judges on the bench is the last thing we need.”  According to a recent report by PMC, that election cost at least $4.5 million dollars, and when political party spending is factored in, likely several million more.

The public has been increasingly concerned about the role of money in judicial elections, worrying that justice might be for sale to the biggest campaign contributor or spender.  Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.  As Justice Stevens noted in his dissent (quoting the Justice At Stake amicus brief PMC joined), “At a time when concerns about the conduct of judicial elections have reached a fever pitch . . . the Court today unleashes the floodgates of corporate and union general treasury spending in these races.”

In recent years, judicial elections have become more like elections for other public offices, despite the fact that judges are different from legislators and executive officers.  Electing judges in expensive, partisan contests complete with negative ads, third-party spending, mass media campaigns and debates over “hot button” issues, makes it difficult to remember that judges are sworn to be impartial arbiters of the law.  Instead, people worry that popular opinion, personal bias, and the desire to please campaign contributors or supporters will sway judicial decision-making.  This is unacceptable, but it is the natural by-product of our electoral system. Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

“There is a simple solution,” said Goodman.  “Change the way we select appellate court judges.”  Merit Selection is a hybrid system that combines the best features of appointive and elective systems and adds a new component – an independent, bipartisan citizens’ nominating commission to screen and evaluate potential candidates for the bench.  The Governor nominates a candidate from the nominating commission’s list of the most qualified, and that candidate is subject to Senate confirmation.  After an initial four-year term (and every ten years thereafter), a judge would stand before the public in a nonpartisan yes/no retention election.

Bills are currently pending in the Pennsylvania legislature to implement a Merit Selection system for the three state-wide appellate courts.  Amending the constitution requires the legislature to pass the bills in two successive sessions.  Then, the people of Pennsylvanian would vote in a referendum on whether to change the way we select appellate judges.

As noted in the amicus brief in which PMC joined, “Courts can only be impartial if they are independent.  To ensure due process, judges must be able to make decisions without looking over their shoulder at wealthy donors [and supporters] whose cases they must decide.”  The Supreme Court today made that more difficult.  Pennsylvanians have the opportunity to make it much easier:  change the way our appellate judges reach the bench.  “PMC and PMCAction believe it’s time to let the people decide.”

Pennsylvanians for Modern Courts is a nonprofit, nonpartisan organization working to promote the reform of Pennsylvania’s judicial system.  www.pmconline.org.  PMCAction is an affiliated nonprofit, nonpartisan organization that lobbies for court reform initiatives. www. pmcaction.org. Blog: www.JudgesOnMerit.org.

Also responding to the decision are PMC coalition members Justice at Stake and American Judicature Society (pdf).

Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity. It would have the effect of discouraging ‘the broadest possible participation in financing campaigns by all citizens of the state’ through voluntary contributions . . . because it would deprive citizens who lawfully contribute to judicial campaigns, whether individually or through an organization, of access to the judges they help elect . . . .

Can’t deny that – it’s certainly a problem.

The problem is, not disqualifying a judge who receives money from a litigant creates an even worse impression: that justice can be bought. In no other country can a litigant give money to a judge without committing bribery (the US is the only country with jurisdictions that elect appellate judges). Of course we are not equating contributing to a judicial campaign with an act of bribery, but it sure may feel that way to a litigant who did not contribute a hefty sum to the judge when her opponent did.

There is a profoundly elegant solution to this otherwise intractable mind-twister. Stop electing judges. There, that was easy.

Incidentally, the article points out that the order comes at a time when the court is being slammed with requests that Justice Michael Gabelman recuse himself from all criminal cases because of statements he made during his campaign that basically equated defending accused criminals with supporting crime. The truthiness of those claims were almost grounds for having Gabelman removed from the court altogether. Race-to-the-bottom campaign statements are just another reason why judges don’t belong in elections.

HT: How Appealing

In his remarks [Congressman and Democratic City Committee Chair] Bob Brady noted that Judge Lazarus sought the Superior Court seat in a previous election and lost. . . . But in explaining her initial loss Brady said that there were many factors involved in her loss “none of which had to do with her quality or ability.”

And that’s the point, Congressman Brady.

The election of judges is wrong precisely because the process has nothing to do with “quality or ability” and everything to do with political access, connections, deals, campaign contributions, special interests, geography, the sound of the candidate’s name and other factors that aren’t even remotely related to merit. It’s a disgrace.

How sad that good, dedicated, honest judges like Judge Lazarus have to go through this process and jump through these hoops to get onto the bench. How sad that they have to pa[y] homage to political bosses and assorted ward leaders and hangers-on.

It’s unseemly. And it’s the wrong way to pick judges.

Well said, Dan. And, so we don’t have to toot our own horn – he continues:

That’s why we support our friends at Pennsylvanians for Modern Courts (PMC) who have been fighting the good fight for merit selection. Get involved with PMC and join them in the battle for great judges and a first rate judicial system

“Most of it came from lawyers. Lawyers who are going to have their matters entertained and judged by the people to whom they were contributing money.”

The only truly effective way of taking money out of the equation is to stop treating judges like politicians, and implement a judicial selection process, like Merit Selection, in which there is no campaigning.

The editorial noted that in some states “where judicial elections have devolved into money-driven battles of ugly TV ads,” including Pennsylvania, “sentiment for change is building.” The perception of the role of money in elections is a primary reason for a change to Merit Selection. After citing the $4.5 million spent on the recent Supreme Court race in PA as reported by PMC, the paper noted:

The biggest problem is that judges and candidates for the bench must raise campaign money primarily from lawyers, groups and individuals who might have cases before those same courts. In statewide races, the sums can be enormous. It leaves the public wondering whether money is buying influence.

Referencing other problems with electing judges, the Star-Telegram asked rhetorically:

Who doesn’t want fairness, impartiality and justice when they go into court?

Who doesn’t want qualified, capable, independent judges deciding disputes?

Who honestly believes that the only way to achieve that is to elect judges through expensive campaigns that do more to undermine public confidence than to provide voter education about the judiciary?

Good questions. The first step in the process was set in motion at a hearing before the House Judiciary Committee’s Sub-Committee on Courts late last year.  If the state houses pass the legislation currently before committee in two consecutive sessions, the voters will have the ultimate say whether to amend the state constitution to make this important change to the way we select judges.