Pennsylvania is one of just six states that elect all of their judges through partisan political elections. Judges should not be forced into fundraising roles and political party labels. Running in an election encourages these judges to act like politicians rather than independent, arbiters of the law. Judges should be treated differently than politicians because the judicial branch is different than the others.
Pennsylvanians for Modern Courts advocates for merit selection of appellate judges. A 2010 scientific poll of likely voters, conducted by Public Opinion Strategies, showed that 62% of Pennsylvanians were in favor of replacing the current appellate judicial election system with merit selection.
On this week’s episode of Last Week Tonight, John Oliver took on the topic of judicial elections, referring to them as a “horrible spectacle.” John Oliver began his segment with a discussion of Alabama’s Chief Justice Roy Moore, who has ordered state judges to ignore a federal ruling that would allow same-sex couples to marry. Justice Moore was elected to his position, as Oliver points out.
39 states in the U.S. hold judicial elections. No other country holds judicial elections on the same scale as the United States, except Bolivia, as Oliver points out. Most judges in the U.S. run unopposed.
One of the major problems with judicial elections that Oliver discusses involves advertising. Studies have shown that judges are likely to rule more harshly against criminal defendants to protect themselves from future judicial attack ads that may suggest they are “too soft on crime.” The studies show judges change their behavior in election years and are tougher on crime. Oliver says, “That’s terrifying. You shouldn’t be sitting in a prison going, ‘How did you get 15 months for public urination?’ ‘Well, you know, it was October in an election year. I should have known what I was getting into.’”
Another problem John Oliver takes issue with is lawyers donating to judicial campaigns, which he describes as “the definition of a conflict of interest.” Judges also often accept money from business and special interest groups, which can lead to them voting in favor of those groups in the future (on the Ohio Supreme Court, judges on average vote in favor of those who contribute to them 70% of the time, with one judge voting in favor of his contributors 91% of the time). Oliver is truly disturbed by what he describes as the “shaking down” of lawyers for campaign donations, and the increasing presence of PACs and SuperPACs in judicial elections following the Citizens’ United decision. The result is extremely political elections in what should be a fair and impartial system.
Oliver also took on Philadelphia Traffic Court Judge Willie Singletary in his segment. Oliver showed a 2007 video of Singletary in which he is shown asking a crowd to donate to his campaign in order for them to receive favorable treatment in traffic court. Oliver points out that Singletary was ultimately removed from the bench for showing nude photos of himself to a Traffic Court cashier, calling it a “2012 judicial penis debacle.” Singletary was convicted of lying to the FBI in the recent case regarding Philadelphia Traffic Court Judges accepting bribes in exchange for special treatment in traffic court.
Oliver correctly points out many of the major issues with judicial elections in this country. These issues are particularly relevant in Pennsylvania, which has entirely partisan judicial elections and has encountered numerous judicial scandals recently. Oliver ends his clip by saying, “Faith in a strong, independent judiciary is essential in civilized society. If we’re going to keep electing judges, we may have to alter our idea of what justice is.” He continues, “In fact, at the very least to be a bit more representative, we should tweak the blindfolded lady holding scales, to put a tip jar in her hand and a give her a winking emoji for a face.”
A recent article published in the Allentown Morning Call and authored by former Lehigh County Judge Maxwell E. Davison is calling for merit selection of appellate judges. Judge Davison is joined in his opinion by six other former Pennsylvania judges. Citing numerous reasons for the change, including the recent pornographic email scandal involving former PA Supreme Court Justice Seamus McCaffery, Judge Davison argues that merit selection of appellate judges in Pennsylvania is “long overdue.” We agree.
In the 2009 Pennsylvania Supreme Court race, the two candidates who ran for the bench raised nearly $5 million in support of their campaigns. Judge Davison’s article points out that with three open seats on the Court this year, the money raised and spent is likely to be staggering. When the winner of a seat on Pennsylvania’s highest court is essentially determined by who is able to shell out the most money, justice is not served.
Judge Davison’s article points out that merit selection focuses on qualifications and talent, as opposed to our current system, in which judges are often elected based on arbitrary factors such as their ability to fundraise or their ballot position. Merit selection “removes politics from the courtroom.” Since judges are supposed to be neutral arbiters of the law, most of us can probably agree that the courtroom is no place for politics.
Judge Davison discusses the merit selection system, which would consist of a nominating commission whose job would be to screen, evaluate, and recommend candidates for service. The commission would be comprised of men and women from diverse backgrounds across the state (the article says the commission would contain members of the legislature, which we do not advocate for at PMC). The governor would then nominate a candidate from the list, and the candidate would then be confirmed by the senate. The public would be able to vote for judges in retention elections after a number of years. Judge Davison also discusses how each candidate would be required to possess certain minimum qualifications, such as having at least ten years of legal experience (PA currently has no experience requirements for those who wish to run for judge).
Pennsylvania is one of six states that chooses all its judges in entirely partisan judicial elections. The article recognizes, as does PMC, that no system is perfect. But with numerous courtroom scandals that have recently occurred in Pennsylvania, and money spent on elections ever-increasing, there has to be a better way than partisan elections. Who would better understand the problems with our current system than former judges who participated in it? Pennsylvania citizens should not feel as though justice can be purchased through generous campaign donations. Judges should not engage in campaigning and fundraising. It is time that Pennsylvania listens to Judge Davison and other former PA judges and implements a merit selection system for choosing appellate judges.
Recent studies have shown that Citizens United likely has had a tremendous impact on judicial elections. Since the US Supreme Court’s decision in 2010, judicial campaign spending has increased at an alarming rate. In the 2011-2012 election cycle, $24.1 million was spent on state court races, which was an increase in more than $11 million since the 2007-2008 cycle. Much of the spending comes from outside, special interest donors. Smaller judicial races have become particularly attractive for these donors, since judges have the power to influence ideological issues such as abortion or business regulations.
What does this increase in spending from outside groups mean? A report issued by the American Constitution Society found that ads that are paid for by outside groups are generally negative, and that these negative ads can actually have an effect on judges’ rulings. This is largely true for criminal cases. Many of the ads play on television and focus on judges being “too soft on crime,” and use examples such as judges giving lenient sentences to child molesters or murderers. The American Constitution Society’s study found that the increase in negative ads on television correlates with a seven percent decrease in judges’ voting in favor of criminal defendants. Judges are also likely to issue harsher sentences, according to an analysis published by The Review of Economics and Statistics. The study showed that Washington State judges who were soon facing re-election issued sentences to criminal defendants that were 10% longer at the end of their judicial cycle, as opposed to at the beginning.
The increased spending has been shown to affect cases outside the criminal arena as well. Studies have shown that when lawyers or business interests contribute to a judge’s campaign, that judge is more likely to issue them favorable decisions in the future. In addition, one study found that state supreme court justices who receive at least 25% of their campaign contributions from business interests, later ruled in favor of business interests in approximately 62% of their cases.
All that being said, these problems could be avoided entirely if rather than having judicial elections, we moved to a merit selection system. Pennsylvania is one of six states that elect all our judges partisan judicial elections. With the issues that judicial elections present, and studies suggesting that judicial campaigning can have a real impact on judges’ decisions, what better time for change than now? Five years after Citizens United, the results are in. Judicial elections are not working. It is time to move for merit selection in Pennsylvania.
Can you name at least two candidates in any of the recent judicial elections in your district or state? Do you know something meaningful about the platform they ran on? Even if you can answer the first question, the second question might leave you stumped.
Public offices such as governor, representative and senator get more than their share of the media’s attention. When it comes to meaningful coverage of judicial elections, however, the public is often left in the dark. In the few cases when judicial elections gain wide spread media attention, it is usually for the wrong reasons, as was the case for the recent Supreme Court race in North Carolina. So then, the public is either not fully aware of judicial candidates or are left to make their decisions on television ads funded by partisan interest groups. In both cases, the public suffers.
Pennsylvania is currently one of only six states that elect all their judges in partisan elections. With the growing involvement of interest groups and their money, judicial campaigns are beginning to look more and more like political campaigns. Issues relevant to the bench, such as the candidate’s experience and track record of ruling by the law, are replaced by negative attacks on opponents and the political affiliation of candidates.
Compared to political leaders, judges are the public officials that citizens are most likely to come in direct contact with in their everyday lives. Judges play the important role of upholding the rule of law and making sure that justice is fairly and equally enacted amongst all. With such an important responsibility placed upon judges, it becomes crucial that there be an effective and reliable system in place to ensure that the best-qualified candidates are entrusted with carrying out the duties of the bench. This is where merit selection comes in.
Rather than continue the politicization of judicial elections, merit selection allows for candidates to be considered for and appointed to judgeships based on their qualifications and proven track record. Through nominating commissions that thoroughly vet candidates and retention elections, merit selection provides the public with opportunities for engaged participation in choosing judges, rather than relying on thirty second attack ads.
Across the country, politics is quickly rearing its head in the nation’s courtrooms. Lawmakers are infringing more and more upon the independence of the judiciary. Lawmakers in Oklahoma, Missouri and Kansas have introduced bills that limit the power of the judiciary following unpopular decisions.
This phenomenon is made worse by increases in partisan financial support for judicial elections, which are also threatening the independence of the judiciary. Current judicial elections make it nearly impossible for judicial candidates to run without substantial donations to fund their campaigns. This has allowed partisan and special interest groups to have more influence on judicial elections through their funding of candidates. In North Carolina alone, special interest groups spent more than $1.3 million on the Supreme Court race, with $900,000 contributed from the Republican State Leadership Committee being used in attack adds against incumbent Supreme Court Justice Robin Hudson.
A recent study by Center for American Progress reports that states have failed to update their judicial recusal rules to reflect potential conflict of interests resulting from campaign contributions.
Political pressure coupled with the increasing campaign contributions leaves our judiciaries in precarious situations. Editorials in The Washington Post and The New York Times highlight the growing concern over the loss of judicial independence. The judiciary has long been seen as the branch of government most isolated from the partisan bickering of politics. Judges are expected to rule in accordance with the law, safe from threats of retaliation from lawmakers. It is this separation of powers and the belief in the objectivity of the law, which has made our judicial system what is today. If events like those in Oklahoma, Missouri and Kansas continue, our proud history of an independent judiciary could be at risk.
One way to push back against the pressure of politics and money is to change the way we select our judges. Moving from Pennsylvania’s current system of expensive, partisan judicial elections to the merit selection of judges would curb the influence of money and politics from our courts. Merit selection takes into account the candidate’s ability to uphold the rule of law rather than the candidate’s war chest or political affiliation. In merit selection, a nomination commission of private citizens vets judicial candidates, with the most qualified candidates being recommended to the governor for approval and senate confirmation. Once confirmed, judges will sit for a shortened term before facing voters in a yes/no retention election to determine if they are fulfilling their responsibilities as judges. This helps limit the pressures of politicians and their checkbooks that our judges currently face.
The events in Oklahoma, Missouri and Kansas should serve as a warning that we need to take action to maintain the integrity of our judiciary. Here in Pennsylvania, PMC is currently pushing for legislation to implement judicial merit selection, protecting both the integrity of our judges and our justice system. We need an independent justice system that works for the people––not the politicians–– and merit selection is the best way to achieve that goal.
Great news for state-level Republican judicial candidates throughout the country: they could be seeing a lot more financial support from their party! The Republican State Leadership Committee (RSLC) announced its plans to launch the Judicial Fairness Initiative tasked with providing monetary support for judge candidates with conservative ideology.
Specifically, the Judicial Fairness Initiative plans to help mobilize voters, fund campaigns, and gather resources to help in judicial elections. While Matt Walter, president of RSLC, has not announced a set budget for the program, the group is estimated to spend more than $5 million on judicial campaigns this year alone.
Most recently, the RSLC had gained national attention with its involvement in the North Carolina Supreme Court race. The group contributed over $600,000 to the conservative Justice for All NC PAC. Justice for All NC then went on to release a series of ads against incumbent Justice Robin Hudson suggesting her of siding with ‘child predators’ after her dissenting opinion in a case over electronic monitoring of child molesters.
However, Republicans are not the only ones throwing money behind judicial candidates. Groups and individuals from across the political spectrum, including left-leaning Human Rights Watch, are providing financial support for their favored judicial candidates. Since very few states have laws requiring judges to recuse themselves in cases involving parties that contributed to their election, it presents a public perception of impartiality when judges preside over such cases.
Current judicial elections risk turning the judiciary into another partisan political battleground. When partisan political groups support judges, either financially or through endorsements, the perception of a fair and impartial judiciary is tainted. Judges then risk being seen as ruling in line with their political supporters rather than through the objective interpretation of the law. As Alicia Bannon, of the Brennan Center for Justice at NYU law school accurately states, the politicization of judicial elections risks turning judges into ‘politicians with robes.’ With a judiciary that depends heavily on public trust, judges cannot risk the perception of impropriety.
The most appropriate way to curb the influence of politics from the judiciary is through merit selection. Merit selection depoliticizes judges by removing the pressure on judges to act in accordance to a political ideology in return for campaign donations and support. Instead, merit selection relies on the nomination of qualified judge candidates by a bipartisan citizen committee for gubernatorial approval and Senate confirmation. This process ensures the selection of judges based on their earned credentials, not their political allegiance.
Pennsylvania can avoid the partisan influence of the RSLC and other groups by supporting efforts to move from contested elections of judges to the merit selection of judges. We all deserve a court system we have confidence in to act in accordance with the law, rather than with politics. Let the politicians keep their suits; we prefer our judges in robes.
It’s been said before, ‘merit selection takes power away from the people to choose judges who represent them.’
But, that represents a fundamental misunderstanding of the role of a judge; judges should not represent the people who voted for them. Judges should represent the law and the ability to decide cases before them impartially.
Judges are expected to decide cases based on the facts and the law, not public opinion or campaign promises. In allowing lawyers, law firms and groups who often appear before the court the ability to donate to judicial campaigns, we risk the public perception that judges rule in favor of their supporters. This creates the impression that justice is for sale.
Merit selection allows citizens the opportunity for more meaningful participation in judicial selection. In reality, how much meaningful information is the public receiving about judicial candidates under the current judicial election system? The public is bombarded with numerous names (many of whom they probably never heard of) and the real worth of a candidate is lost beneath all the flashy political signs and slogans rampant in campaigns.
Under merit selection, the chaos of campaigning is removed thus allowing for more productive interaction between prospective judges and the public. Through the initial merit selection process, only the most qualified of applicants are given consideration for appointments. As members of the nominating commission, citizens are then able to engage in more meaningful consideration of nominees, rather then wading through lists of names. The public may also give input to the Governor before he or she makes the nomination and during the confirmation hearings before the Senate.
Most importantly, retention elections provide the public with another opportunity for engaged participation. Retention elections allow the public to decide whether a judge should stay on the bench based on the judge’s track record, not on his or her campaign capabilities.
The most important thing to remember is that while the public is still engaged through the nominating commission and retention election process, the law is still the primary concern. Both the nominating commission and the retention election is concerned about the ability of candidates to objectively represent the law, not a specific interest group.
In essence, merit selection is not about taking power away from the people, rather it’s about providing the public with the best chance of having a fair and impartial judiciary.
This week, Minnesota has gotten one step closer to moving to a merit selection system. In doing so, the state has progressed towards finally putting to bed the partisan-politics-laced, big-money-fueled judicial election system in their state. The very same election system which in recent years has plagued judiciaries across the the country and eroded the the public trust in our court system.
So, what happened? The Minnesota Senate Subcommittee on Elections approved the proposed constitutional amendment to change the state’s judicial election system to a merit selection system and sent it up for a full vote of the Senate Rules Committee. Specifically, “the proposal calls for gubernatorial appointment of judges from a list of finalists recommended by a merit selection commission, a retention (up or down) election if the judge seeks to stay on the bench, and nonpartisan evaluation of judges’ performance by an independent performance evaluation commission.” Last year, the House version of the bill was approved in the House Elections Committee and remains pending in the House Judiciary Committee.
Under Minnesota’s current judicial election system, races for judicial seats have become policy battlegrounds, with judicial candidates campaigns’ being bankrolled by corporations, lobbyist groups, trial attorneys, and political action committees. These are the very groups and individuals who often appear before the these courts. Obviously, this doesn’t do much for the the public perception of impartiality in judicial decision-making. With fundraising in the millions, judicial elections now have taken on the character of legislative races, with candidates employing the use of attack ads and running on platforms. In support of the constitutional amendment, former Minnesota Supreme Court Justice Eric Magnuson when addressing legislators said, “A judge can’t run on a platform. That’s antithetical to what a judge does. A judge decides cases based on the law and facts in front of him or her.”
Like Minnesota, Pennsylvania has a constitutional amendment (House Bill 1848)making its way through the state legislature that would replace judicial elections for all judges to a merit selection system to choose statewide judges. Backed with bipartisan support, the bill would help ensure that only the most experienced and qualified judges serve on the bench. A merit selection system is necessary to take judges out of the business of fundraising and partisan politics out of our courtrooms. In doing so, this would be a big step toward restoring the public’s faith in a fair and impartial judiciary, untainted by the bias generated by the current partisan judicial election system.
In January, the Pennsylvania Supreme Court announced the adoption of a revised Code of Judicial Conduct which will go into effect July of this year. One major area affected by the revised rules revolves around campaign contributions to judicial candidates. Under
the new rules of judicial conduct, judges will have to recuse or disqualify themselves from hearing cases involving parties whose campaign contributions “would raise a reasonable concern” about a judge’s ability to be fair and impartial.
Unlike some states which have enacted fixed monetary limits, the Pennsylvania Code’s rule on campaign contributions is far more subjective. Because the new code does not explicitly define what a “reasonable concern” is, it would be left to the discretion of the judge to make his/her own interpretation based on the facts and the parties involved. “Ultimately, each judge will have to weigh the donations and the timing of those donations when considering recusal,” said Northampton County President Judge Stephen Baratta. Pennsylvania Chief Justice Ronald Castille believes that in adopting the “reasonable concern” standard, it ensures even application by judges across the entire state.
WIth judicial candidates now running campaigns that generate contributions in the millions of dollars, public perception has been a significant issue, not just in Pennsylvania but nationwide. A 2013 poll by the Brennan Center and Justice at Stake found that “the public is skeptical of allowing campaign contributions in judicial contests. Nearly 90 percent of voters across the country think campaign donations have at leas some influence on judges’ decisions and more than nine out of ten people said judges should recuse themselves when one party in the case has donated directly or indirectly to a judge’s campaign.”