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The Texas Tribune reported on a study by San Diego State University political science professor Madhavi McCall that analyzed the relationship between judicial decisions and campaign contributions in 530 Texas Supreme Court over period lasting more than three years. “In every instance,” professor McCall said, “the probability of a party garnering votes increases if the party contributed to a given justice’s campaign.”

But most judges and justices are adamant that campaign contributions never affect their rulings. Some even suggest that donations from law firms and other attorneys, rather than inspire concerns about impartiality, should instead be perceived as indicators of quality.

“People who are not qualified cannot raise the money it takes,” according to Texas Justice Debra Lehrman.

It’s hard not to view this as something of a self-serving philosophy.

There’s perhaps even a small thread of cynicism among the justices about the capability of voters to even know what they’re voting for. “Voters insist they want the right to elect their judges,” Supreme Court Justice Don Willett says in the Tribune article. “Ask them to name one, and they’ll likely come up blank. But they want a voice, even as they say that judicial fundraising raises appearance concerns.”

An article from the Wisconsin Isthmus

reports on the money pouring into the Supreme Court campaigns of Ed Fallone and incumbent Pat Roggensack. Filings with the Government Accountability Board show that the candidates for Supreme Court took in a combined $530,000 between February 5 and March 18, and together have raised nearly nearly $900,000.

This figure does not include the money spent on “issue advertisements,” which do not count as direct contributions. The article reports that a single organization, the Wisconsin Club for Growth, placed $300,000 worth of ads during the primary election, and has since spent an additional $146,000 in Milwaukee alone on the general election. Roggenback has also enjoyed the support of the Wisconsin Manufacturers & Commerce, and Fallone has enjoyed significant donations from unions.

And though the election is officially nonpartisan, the state Republican party has given multiple donations to Roggensack, and local Democratic groups have donated to Fallone’s campaign.

Obviously, any justice or judge is going to take his or her ideology to the bench, at least to some degree. But with high-cost judicial elections, we are getting judges who can only reach the bench based on advertised ideologies and political alliances, not their actual qualifications or experience.

The amounts spent on judicial elections keep increasing, and a judicial candidate needs only to be a good political investment, not necessarily good judge, in order to even have a shot. Unless we do something to reverse this trend, the noise of expensive campaigning will drown out everything else.

New information indicates that spending in the 2011-2012 judicial election cycle was even higher than previously reported, topping

$29.7 million and setting

a new record, according to a press release issued by Justice at Stake and the Brennan Center for Justice. The previous record was $24.4 million, set in 2004.

This news follows a December 8, 2012 runoff election in Louisiana to replace a retiring Supreme Court Justice. The last two weeks of the contest alone saw $113,000 spent, with a quarter of that coming from a single outside PAC.

We are likely see this record regularly broken in the years to come. Judicial elections will see massive and increasing quantities of cash burned to fuel political machines, and soon, “money as speech” will be the only audible voice remaining for the people to hear. We need a new way of selecting our judges.

For some of our recent articles on judicial election spending, see A Closer Look at Judicial Election Campaigns and Money Undermines Impartiality.

“Pennsylvania’s biennial judicial races tend to be low attention but high intrigue affairs, with much of the action happening at party state committee meetings.”

It’s a little sentence buried at the end of a Politics PA article, but it sure is a loaded statement. In one, simple statement, the highly politicized nature of Pennsylvania’s judicial elections is revealed.

It’s no secret that the currency of political parties is power, and the judiciary holds a lot of it. Ideally, that power would be held in check by judicial independence and a strict adherence to the law. But partisan judicial elections put that power into play by undermining independence and casting a shadow of prejudice over the bench.

Many areas of the Commonwealth are politically entrenched. Judicial elections are often decided during the primaries because voters are sure to vote their party loyalty in the general election. This means that judicial candidates have to jockey for party

support if they expect to have any chance of winning.

Politics is the domain of the other governmental branches – not the judiciary. Partisan maneuvering has no place in the courthouse. Equal justice and liberty for all are supposed to reign

supreme. As long as judges are forced to engage in electoral politics, the public will be skeptical about the quality of justice being served by our courts.

Texas selects its judges via partisan judicial elections, and Texas Supreme Court Justice Don Willett acknowledges that there are problems with this system. “Hate the game, don’t hate the player,” he said. “Our imperfect system requires judicial candidates to put on their game face, get over their delicate sensibilities, and run unabashedly the way Texas law defines them: as politicians.”

Justice Willett has been criticized for running his reelection campaign on a staunchly conservative platform. But in a series of emails between Justice Willet and The San Antonio Express-News, he tries to explain the “dance” that judicial candidates have to navigate in order to earn a place on the bench. “Justices [are] expected to rule impartially after emerging from campaign fights.”

Justice Willet admits that during his campaign his “singular goal was to appeal to hardcore Republican voters and activists.” Despite espousing hardcore conservative politics during his campaign, Justice Willet avows that he remains fair and impartial in the courtroom. “My vote follows the law,

no matter who the parties are or what they believe. If the law’s on your side, I won’t hesitate a nanosecond before ruling in your favor….”

The stark dichotomy between how judges are forced to act during campaigns and how they’re mandated to act on the bench is a clear indication that partisan elections are not a suitable method of judicial selection. When a judicial candidate solicits votes by advertising that he holds certain beliefs, that’s like a promise — a promise that’s impossible to fulfill. Further, it’s a promise that we wouldn’t want fulfilled.

Judges are supposed to be unbiased. We don’t want them to adhere to political ideologies. We want them to abide by the law. Judges

aren’t “dancers” and they shouldn’t be politicians either. Instead of “hating the game” we should change the rules. Judicial selection should be based on qualifications, not political connections.

“The explosion of campaign cash in judicial elections has led citizens to doubt whether judges can be impartial. Every litigant — regardless of wealth or power — is supposed to be equal in the eyes of the law. But this principle is less true with each passing judicial election.”

USA Today took a look at the staggering amount of spending that dominated judicial races around the nation. While the amount of money spent was extravagant, that’s not the truly alarming part. The distressing thing about these

contributions is where they’re coming from. Special interest spending has long dominated legislative and executive elections in the United States, but now those interests are starting to take on a new frontier — the judiciary. More than half of the money spent this year came from special interest groups entirely outside of candidate campaigns. Even worse, some of these groups are entirely outside of the states

where elections were held.

With our own 2013 judicial elections looming on the horizon, Pennsylvania needs to take a cold, hard look at other races around the nation and decide if the Commonwealth can afford the price of special interest spending. We don’t need special interests pouring money into Pennsylvania judicial elections to push their agendas and poison the public perception of our bench. It’s time to reclaim our courts. Pennsylvania is the birthplace of independence, and we need to put politics aside to return to a judiciary that guarantees liberty and justice for all.

A recent blog compared NFL referees with courtroom judges.  Both sides want the decider to be impartial and skilled.  However, when judges are required to actively fundraise in order to successfully campaign for a

seat on the bench and special interest groups, lawyers and litigants who may later appear before the judge donate large sums of money,

how impartial are the judges?

This problem has ballooned within the last decade.  In 1990, state Supreme Court candidates raised approximately $3 million.  However, by 2000, some high court candidates raised more than $45 million.  Further, some of these contributors are corporate special interests, expecting some sort of benefit for their contribution. A Center for American Progress study reported, “In courtrooms across the country, big corporations and other special interests are tilting the playing field in their favor.”

Although judges are supposed to be impartial, there are political movements across the country to oust judges that decide against political partisans.   For example, a Pennsylvania Tea Party faction set out to defeat a few state Supreme Court justices who refused to uphold to voter ID law.  In Iowa, one party, Iowans for Freedom is leading the call to remove Judge David Wiggins.  He was involved in a unanimous ruling legalizing same-sex marriage.  An opposing party, Justice Not Politics has emerged to protect the court system, merit selection and retention.  They explain, “If politics and campaign money are allowed into the courts, justice will be for sale.”

The Orie Melvin case continues to highlight the problems that result from electing judges.  The entire case is a product of judicial elections:  the Supreme Court justice is accused of illegal use of government resources for her campaigns for the Supreme Court.  And now, as the Pittsburgh Tribune Review reports, in the midst of the Court of Judicial Discipline’s consideration of whether Justice Orie Melvin should continue to draw a pay check during her suspension, there is a question about the conflicts created for judges during judicial election campaigns.  Justice Orie Melvin is charging that Judge Charles A. Clement, Jr. of the Court of Judicial Discipline should recuse from deciding her case because during her 2009

election campaign, he joined in a letter criticizing one of her campaign ads. Clement stated at the recent hearing that he believes he can be fair and impartial.

The question we really should be asking is why we persist in choosing our judges in such a way that creates multiple opportunities for conflicts of interest and appearances (and sometimes actual) biases.  It doesn’t make sense and it’s time to find a better way.

In 1995 the Texas legislature passed the Judicial Campaign Fairness Act. It was enacted

due to too many scandals and too much money in Texas Supreme Court elections.  The Act “imposes mandatory caps on contributions and voluntary limits on expenditures in judicial races.”  The voluntary provision is thought to be effective because of peer pressure, and because if one candidate does not comply, the other need not comply.

According to an article in the Texas Tribune the act is being put to the test by a Republican runoff election for a district court seat in Marshall, Texas.  Brad Morin is running against incumbent Judge William Hughey.  Brad Morin “told the Texas Ethics Commission he would reject the voluntary limits when he named his treasurer for the race in August 2011.”  This has caused both candidates to file lawsuits, ethics complaints and counterclaims against each other.

If more candidates follow in Brad Morrin’s footsteps and choose noncompliance of the voluntary limits, Tom “Smitty” Smith, the Texas director of the political watchdog group Public Citizen stated it could be “disastrous to the independence of our judiciary.”  Morrin’s actions have not only drawn attention from a political watchdog organization, but also from state senator Rodney Ellis.  Ellis wrote,

I am very concerned that we will see a flood of money that further erodes Texans belief in a fair and equitable justice system, . . . We’re moving back towards a Wild Wild West election system and that is not a good thing.”

In a letter published in the Harrisburg Patriot-News, PMC’s Lynn  A. Marks points out the problems in Dan Pero’s recent op-ed about Merit Selection.  Pero focused on the fact that even Merit Selection systems cannot totally eliminate politics from judicial selection. While conceding this point, Marks pointed out the big issues that Pero ignores and the real reasons Pennsylvanians want to find a new way to select judges:

Seventy-six percent of surveyed Pennsylvanians believe that campaign contributions affect judicial decision-making. In other words, the public believes justice is for sale. The same survey found that 73 percent believe that the most qualified candidates do not win judicial elections. This is not surprising. Elections are designed to reward the best campaigners and fundraisers, not the most qualified candidates.

Marks further notes that by tabling the Merit Selection legislation, the House Judiciary Committee essentially voted against allowing the people of Pennsylvania to decide whether to change how we select appellate judges.  93% of surveyed Pennsylvanians want the opportunity to decide. Pero thinks the legislature serves the voters by tabling legislation and keeping the issue bottled in committee.  We disagree and  believe the legislature can show voters it trusts them by giving them the opportunity to decide for themselves whether there is a better way to choose judges.

A column in the Holland Sentinel opines about the state of Michigan courts. Four years ago, Michigan was ranked last in a grading of the nation’s supreme courts conducted by the University of Chicago Law School. Michigan’s ranking was partly a reflection of its lack of judicial independence.

In response to the court’s poor perception, a Michigan Judicial Selection Task Force was created. The bipartisan task force was made up of more than 20 respected residents of the state and set out to identify the problems plaguing Michigan’s judicial system and solutions to address those issues. The group’s report is out now, and the results are striking.

The task force discovered that judicial elections in the state are expensive, secretive, tinged with favoritism, and susceptible to partisan politics. The group ultimately reached two unanimous recommendations: 1. Judicial elections should be open and non-partisan, and 2. All judicial campaign contributions should be publicly reported.

While these recommendations will help improve the election process, some of the task force members felt that further action was needed and favored switching from judicial elections to a Merit Selection system. Changing to a system where a screening commission would vet candidate qualifications for gubernatorial appointments that are subject to the approval of the legislature requires that the Michigan constitution be amended.

The column concludes with disappointment at the fact that the task force’s recommendations haven’t been seriously considered by leaders in the state. Nevertheless, these suggestions have brought the need for reform to the forefront.

Because the Commonwealth also uses partisan judicial elections to choose our judges, Pennsylvania’s judicial system is susceptible to the same troubles that afflict Michigan’s courts. Like Michigan, proponents of judicial selection reform have suggested amending the Pennsylvania constitution to switch to a Merit Selection system. Like Michigan, Pennsylvanians are hopeful that our legislative leaders will “be willing to do something to benefit our entire state.”