Archive for the 'Judges' Category

Jun 27 2014

In the Right Spotlight

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.

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May 29 2014

Political Justice

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.

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May 07 2014

Politicians in Robes?

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.

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Mar 25 2014

In the Interest of the Law

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.

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Mar 17 2014

One Step Forward for Minnesota and Merit Selection

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.

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Mar 03 2014

New Pennsylvania Code of Judicial Conduct Rule Bars Judges From Hearing Major Donors’ Cases

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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

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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.”

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Feb 25 2014

Upcoming Illinois Retention Election Reminds Us Why Merit Selection Is Needed Now More Than Ever

Illinois Supreme Court Justice Lloyd Karmeier, whose 2004 campaign race to unseat Appellate Court Justice Gordon Maag raised more than $9 million between the two campaigns, is up for retention election in November.  As the retention election approaches it conjures up memories of just how much of a game changer his Illinois judicial election was ten years ago.

The 2004 race between Justice Karmeier and Justice Maag was the most expensive campaign for a state Supreme Court seat in American history and completely changed the fundraising landscape in judicial elections nationwide.  Justice Karmeier’s campaign raised $4.8 million and relied heavily on in-kind contributions from Republican organizations and Chamber of Commerce groups.  Justice Maag’s campaign amassed $4.3 million dollars receiving a multitude of donations from various political action committees, lobbyist groups, and trial lawyers.  And as the money came rolling in, so did the mud slinging and attack ads by the candidates’ supporters.

“The Karmeier race turned out to be a harbinger of a trend that unfortunately has spread across the nation,” said Bert Brendenburg, Executive Director of Justice at Stake.  This “trend” has had the effect of shifting the focus of judicial elections away from getting the most qualified judges on the bench, to instead being more centered on which candidate is the best campaigner or fundraiser.  The repercussion of which has been a growing perception among the public that judges are politicians first, and impartial interpreters of the law second.  This erases the distinction between judges and officials who serve in the executive and legislative branches.

The 2004 Illinois Supreme Court election is the epitome of how flawed the partisan judicial selection system is and why the transition to a merit selection needs to happen now.  A merit selection system for electing judges ensures that only the most experienced and qualified candidates reach the bench.  It permits judges to carry out their judicial role free from improper influence from popular opinion, private partisan interests, and campaign contributors, and allows them to decide cases based on the facts and the law.

 

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Feb 25 2014

Judges for Sale in North Carolina

Since 2004, more than 80% of judicial candidates in North Carolina have used public financing to fund their campaigns. This program gave a grant to judicial candidates who raised money from small donors and agreed to strict spending limits. However, after nearly a decade on the books, the program was eliminated by North Carolina lawmakers, opening the door for big money to flow into judicial campaigns in the state.

 

Individuals in North Carolina can now contribute up to $5,000 to a judicial candidate, up from $1,000; and without public financing, judicial candidates will rely heavily on big donors, in order to win elections. According to the national institute on money in state politics, 78% of North Carolina’s supreme court elections were monetarily competitive under public financing, as opposed to only 25% prior to it. With the elimination of this program, judicial seats will go to the best fundraiser, rather than the most qualified candidate, which will only undermine public confidence in the judiciary.

 

Big money exacerbates the already problem-laden practice of judicial elections. When judges are forced to court big donors in order to be elected, it puts them in a position they are unaccustomed to, and creates the appearance of impropriety. Further, it is difficult for the public to have faith in an impartial judiciary, when lawyers, law firms, and corporate interests are allowed to buy influence in it. Public financing greatly reduced the impact of big money in North Carolina’s judicial elections, now with it it gone, the state’s upcoming judicial elections may be one example to the nation, of just how much justice really costs.

 

Pennsylvania needs to get its act together and reform our own judicial selection model. The bipartisan judicial merit selection legislation, currently pending in the House, will guard Pennsylvania judges from the insidious effects of big money, and assure Pennsylvanians that our judges are not for sale.

 

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Oct 25 2013

"Smart Talk": Perceived Corruption and Low Participation in Judicial Elections

Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, recently appeared on WITF’s “Smart Talk” radio program to discuss why Pennsylvania should pick judges through merit selection.

At one point in the program, the host, Scott LaMar, asked Marks “what makes a good judge?” Marks responded that good judges have extensive legal knowledge and experience, even temperaments, and reputations for ethical behavior both on and off the bench. Additionally, unlike other public officials, judges are not representatives of the people. Thus, good judges never base their decisions on public opinion like a legislator or a governor would. Instead, they decide cases based upon the facts and the law.

One of the major problems with contested elections is that they are incompatible with the role of judges as impartial arbitrators and “turn judges into politicians,” said Marks. This occurs because judges, particularly at the appellate level, must raise large sums of money to win. Most of this money comes from lawyers and special interest groups who regularly appear in court, and judges are not required to recuse themselves from cases involving individuals that have donated to their campaigns.

“I am not saying that judges are corrupt and are making decisions based on where [their campaign contributions] came from,” said Marks, but “most Pennsylvanians and most Americans believe that campaign contributions affect a way a judge decides cases.”

This is very problematic because the cornerstone of the judiciary is fairness, both real and perceived. If the people believe that judges can be bought, half of that cornerstone is ripped from the foundation of the justice system. Merit selection, however, preserves public confidence in the judiciary by eliminating most of the money from the judicial selection process.

The problems associated with judicial elections are not limited to perceptions of impropriety. Elections also limit the pool of qualified judicial candidates. According to Marks, many qualified lawyers don’t bother running for judicial office because they don’t have the campaign skills, access to money, or connections required to win. This is exemplified by the fact that only one Democrat ran in the last Supreme Court primary race. Under a merit selection system, however, candidates do not have to campaign to get into office. Instead, they apply for a judicial position, and they will be appointed if they are the most qualified candidate.

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Additionally, voter turnout in judicial elections is almost always very low. This may be due, at least in part, to the fact that it is difficult for voters to get the information necessary to make informed decisions, said Marks. Most media outlets refuse to cover judicial races in much detail, if at all, and most campaign advertisements contain little information other than generic recitations that the candidate is “fair-minded” and “tough on crime.”

In contrast, members of a citizens’ nominating commission thoroughly vet the candidates in a merit selection system. Specifically, they review applications, hold interviews and public hearings, read court opinions and other legal documents, and do other things that the general public simply does not have the time or resources to do. The commission then sends a list of nominees to the governor, who then appoints one of them, subject to Senate confirmation. Four years later, the appointee faces the voters in an uncontested retention election. Thus, the people retain the final say over which judges stay and which ones go.

It is also important to understand that merit selection does not amount to “taking away the power of the people to vote for judges” (a common accusation). A constitutional amendment is required to change the way in which judges in Pennsylvania are selected, so the people would be the ones deciding whether they want to embrace merit selection.

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Sep 20 2013

Merit Selection Is Good for Democracy

Recently, former U.S. Supreme Court Justice Sandra Day O’Connor spoke to the National Association of State Legislatures in Atlanta. Justice O’Connor, a longtime supporter of merit selection, argued that the judicial system is becoming dangerously politicized due to certain misconceptions about the judiciary. In particular, she addressed the argument that selecting judges through a merit selection process is “undemocratic.”

Democracy does not require there to be elections merely because it is possible to hold them. If this were the case, nearly every government position, from the Pennsylvania Secretary of Agriculture to the Chairman of the Federal Reserve, would have to be filled by contested elections. Rather, democracy requires there to be elections for bodies that represent the people. Obvious examples would be Congress and state legislatures- elections are required because appointing legislators would insulate and disconnect them from the people they are supposed to be representing.

The judiciary, on the other hand, is not a representative of the people. Justice O’Connor would agree that unlike legislators, judges are not supposed to render decisions based on popular opinion.  Rather, the proper role of judges is to apply the law to the facts in an objective, dispassionate manner, and it is therefore not irrational or undemocratic to insulate judges from the will of the majority. In fact, it is desirable to do so because contested elections can undermine the ability of judges to neutrally apply the law by rendering them beholden to public opinion and special interest money.

Of course, judges need to be accountable in the sense that they should not be on the bench if they are unqualified, corrupt, or unfair. Merit selection takes care of this- judges are nominated by members of a nominating commission and appointed by the governor, and they face uncontested retention elections after each term. Retention elections do not subject judges to the political and monetary pressures of contested elections, yet they allow the people to retain the final say. In addition, the judicial discipline system holds judges accountable for their conduct on and off the bench in order to uphold the integrity of the justice system.

Merit selection isn’t undemocratic – it’s the best way to get money and partisan politics out of our courtrooms.

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