judgesonmerit.org

That’s the tag line for one of the candidates in Ohio’s Democratic primary for the chance to challenge incumbent Supreme Court Justice Robert Cupp.  According to the CantonRep.com, both Democrats believe the Ohio Supreme Court has  “a trust problem.”  Candidate William O’Neill, a former appeals court judge, says “‘Money and judges don’t mix,’” and pledges not to accept money from anybody.  His opponent is Fanon Rucker, a Hamilton County Municipal Court Judge.

We think the candidates have tapped into the important public perception that campaign contributions influence judicial decision-making and the accompanying lack of confidence in the courts.  O’Neill’s solution — “no money from nobody” — is an interesting one, and we think there’s a way to apply it across the board.  Get judges out of the fundraising business once and for all.  The way to do that — stop using expensive elections to pick judges, and use Merit Selection, which stops the flow of money to judicial candidates.

Two sitting justices of the Wisconsin State Supreme Court have called on their state to consider ending direct judicial elections and enact some form of Merit Selection.  Justice Patrick Crooks, previously a defender of electing judges, stated that the sheer amount of money being spent on judicial elections has changed his mind on Merit Selection.  State supreme court elections were once much smaller financial affairs.  Justice Crooks stated that, recently, “the huge amounts being spent on Supreme Court elections clearly provide a tension on this court, and surrounding this court.” Much of the money now comes from outside sources.  In the most recent Wisconsin State Supreme Court race, one incumbent and his challenger spent a total of nearly $1.3 million with outside special interests spending another $4.5 million on the race.

Justice Ann Walsh Bradley stated that her thinking had evolved on a similar trajectory.  She still prefers rules requiring more meaningful disclosure of judicial campaign contributions and recusal but isn’t sure such changes will occur.  Given the likelihood of a continuation of the status quo, Justice Bradley was “concerned that an elective process isn’t one where the people are really being heard, that their voices are being drowned out by special interests”.

We also support Merit Selection ofappellate judges.  Judicial elections require fundraising and electioneering that reduces the public’s faith in a fair, impartial judiciary.

The Memphis Commercial Appeal has endorsed Merit Selection for Tennessee’s judges.  As the paper states, “[h]aving “Democrat” or “Republican” after a judicial candidate’s name should not be a measure of whether he or she is qualified to dispense unbiased rulings.”

Tennessee Gov. Bill Haslam has called for an amendment of his state’s constitution to provide for continued Merit Selection of appellate judges.  Currently, candidates to the state’s appellate courts are interviewed by a nominating commission which forwards a list of recommended candidates to the governor for appointment.  The appointed judges must then win a retention election every eight years.

While supporters say that the system avoids costly judicial elections and produces good judges, it is uncertain whether it comports to the Tennessee Constitution’s requirement that judges “shall be elected by the qualified voters of the State.” Gov. Haslam has called for a constitutional amendment to provide for the permanent substitution of retention elections for competitive elections.

The Commercial Appeal backs Haslam’s efforts:

 If that’s what it takes to keep overt politics out of state appellate judgeship selections, we hope the governor gets his way. . . The public would be better off if Haslam wins this battle. Appellate judges issue rulings that have a tremendous impact on Tennessee citizens. These decisions should not be issued by judges concerned about raising campaign funds and the feelings of partisan supporters or antagonists.

We agree.  The citizens of Tennessee deserve impartial judges and Merit Selection is the best way to ensure that judges make decisions based on the law, not money or politics.

Oregon State Supreme Court Chief Justice Paul De Muniz will soon be leaving the bench.  In a recent interview, he discussed the many difficulties he has experienced while administering his state’s judicial system.  While most of his recollections focused on keeping the courts running during the economic downturn and updating the judiciary’s aging information technology infrastructure, he also had some choice words on the dangers of judicial elections on the integrity of the courts.  After witnessing the increase in spending in high court races in West Virginia, Illinois, and Ohio, he has called on the Oregon Law Commission to study alternatives to Oregon’s current system of nonpartisan election of judges.  Justice De Muniz was particularly concerned about the effect of special interest money on the Oregon judiciary:

It is no wonder special-interest groups now see opportunities to influence who serves on a state’s highest court. . . So far, Oregon has been spared the financial arms race that typifies the funding of judicial election campaigns in many other states… But we should not wait for the nuclear judicial arms race to strike here.

We agree that the increased spending on judicial campaigns is a direct threat to an impartial judiciary and hope that the voters of Pennsylvania and Oregon will be given the opportunity to choose Merit Selection.

A Daily News editorial strongly endorsed Merit Selection of Pennsylvania’s judges.  The paper argued that no litigant can be confident in the fairness and impartiality of the courts when our system of selecting judges requires massive fundraising efforts during judicial campaigns.  Much of this money comes from attorneys, law firms, interested parties likely to appear in court including large corporations and unions, and political parties.

The Daily News also criticized the Commonwealth’s recusal rules as “weak and vague, and requir[ing] only that judges recuse themselves when their ‘impartiality might reasonably be questioned.’” The paper stated that:

Of course, many judges don’t like to think their impartiality should be questioned, and get offended at the suggestion. And since judges aren’t required to recuse themselves from a case involving a campaign contributor, we can’t be sure that justice will always be served.  This is yet another reminder that the state ought to switch to a merit-selection system that at least somewhat insulates judicial selection from politics, as soon as possible.

Merit Selection will require an amendment to the state constitution.  There are Merit Selection bills currently before the legislature to change the system for selecting appellate court judges, and Gov. Corbitt supports the change.  While such a constitutional amendment will take some years to accomplish, the paper points out that the legislature could act now to reform the current recusal rules, as recently happened in Tennessee.

Tennessee recently introduced a rule prohibiting judges from hearing a case if campaign spending by lawyers or litigants might cause the judges’ impartiality to reasonably be questioned, and goes further by requiring judges who decline a recusal request to provide a written explanation. The state also allows litigants to appeal the decision, taking it out of the hands of the judge in question. (In Pennsylvania, judges’ decisions not to recuse can be overturned on appeal. . . But it doesn’t happen often.)”

We agree with the Daily News that the real solution is to get judges out of the fundraising business.  Merit Selection is the way to do this.

The Eufaula Tribune has written an editorial decrying the current state of Alabama’s judicial politics.  The paper reported that it received a note from Alabama Supreme Court Chief Justice Chuck Malone stating that “For the first time, we have a completely Republican Supreme Court and I am honored to be able to serve the people of Alabama as Chief Justice of that court and to ensure that the rule of law is upheld in our state.”  All nine members of the state supreme court are Republican.  As the editorial says:

Such a partisan court is troublesome, and not because all nine justices are Republican. We’d say the same thing if they were all Democrats.  In actuality, our Supreme Court is more skewed than the oft-liberal Ninth Circuit Court of Appeals in San Francisco. The words “court” and “skewed” should never be used together.

Alabama is one of six states, Pennsylvania included, that elects all its judges in partisan elections.  Alabama had the second-most expensive state supreme court elections in the nation in 2010.  The Tribune further reported that:

Since 1993, special interest groups vying for control of the court have contributed more than $54 million – nearly twice the amount in any other state – to candidates for the Alabama Supreme Court.  In that period, the once Democrat-controlled nine-member court has become all-Republican.

This flood of contributions and hyper-partisanship undermines the notion of impartial courts wherever judicial elections are the norm.  Merit Selection is designed to produce the most fair, impartial and qualified courts.

We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.”"  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

The Legal Intelligencer (subscription required) joined Pennsylvanians for Modern Courts by endorsing Merit Selection of Pennsylvania’s appellate judges.  The endorsement followed in the wake of the grand jury investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for allegedly using state employees to work on her political campaign for the Supreme Court.  The Intelligencer argued that:

Electing judges the same way we elect executive and legislative branch officials ignores the fundamental difference between judges and other officials. Judges are not supposed to represent constituencies, be responsive to popular will or partisan pressure, or make promises about what they will do in office. By contrast, legislators and executive officials are expected to do these things. The result of electing judges like we elect other officials is that the public believes — as Justice Sandra Day O’Connor has said — that judges are just politicians in robes.

The paper noted that the skills required to get elected to the Commonwealth’s appellate courts, fundraising, gaining the support of special interest groups, and the receiving the backing of a political party, are not “related to one’s qualifications to serve on the bench.” The editorial stated that Pennsylvanians deserve a fair and impartial judiciary where attorneys and their clients can be confident that the law, not their opposing party’s campaign contributions, will decide the case.

The answer is merit selection for the appellate courts. Merit selection will stop the flow of money from lawyers, law firms, businesses, unions and special interest groups to the judges who will later be deciding their cases. Merit selection will focus on the qualifications of those who wish to serve on the appellate courts and ensure that we have experienced, wise, ethical judges staffing our appellate bench. Merit selection will provide opportunities for talented lawyers from all over Pennsylvania — regardless of race, ethnicity, gender, political connections or access to big funders — to reach the bench. Merit selection will protect the dignity and integrity of our courts and restore public confidence in the judicial branch. Judicial elections not only cannot do this but undoubtedly undermine public trust and confidence in the judiciary.

Currently, Merit Selection legislation is pending before the legislature.  If passed, the voters of Pennsylvania will eventually be able to decide whether to amend the state constitution and have our appellate judges chosen based on qualifications, not money or politics.  Please contact your state representatives and senators and tell them now is the time to pass Merit Selection.

Both North Carolina and Alabama are looking to Merit Selection as a means of ensuring that judges are selected based on qualifications, not money or partisanship.

North Carolina pioneered publicly-funded judicial elections but fears for the future of that system after the US Supreme Court struck down Arizona’s similar “matching funds” public financing scheme.  The News and Observer argued that the state should avoid politically-charged judicial elections of other states where “judicial offices were seen to be for sale to the highest bidder, who was almost certain to be an interest group buying favorable judgments for its members.” A new plan, proposed by the state’s Bar Association, is based on confirmation and retention elections whereby the state’s voters would decide on judges nominated by the governor based on the advice of a diverse panel.

This proposal is not simple and it is not ideal, but there is no ideal way to choose our judges, and the Bar’s proposal is clearly better than any of the alternatives. . . [O]ur legislators need to give serious attention to the complex problem of judicial elections and to the Bar Association’s proposal for addressing it.

Alabama was the home of the nation’s most expensive state supreme court elections from 2000-09.  The Dothan Eagle reported that in this year’s election, voters will have almost no choice as all but one of the state’s incumbent Supreme Court justices and all of its appellate court judges are running unopposed.  As the Eagle explained:

Alabama’s judicial races have become extraordinarily contentious and, by extension, have grown to become the most expensive judicial races in the country.  If the depth of the acrimony in the campaigns doesn’t raise questions about how blind justice might be with any of the candidates on the bench, then the process itself should. A contest that requires judicial candidates to claim allegiance to a political party and all its philosophical baggage to seek an office that requires objectivity is flawed from the start.  Alabamians should insist that positions on the state courts be treated as judicial appointments instead of political offices.

We hope that the citizens of Alabama, North Carolina, and Pennsylvania will get the opportunity to choose a better way to select judges.

(Hat-tip to Gavel Grab)

The Chicago Journal outlined the process for judicial selection in Cook County, Illinois as follows: “The Central Committee of the Democratic Party of Cook County buys judges with the promise of votes, naming them to the party’s official slate in exchange for implicit support.” Being named to the slate is key in winning any judicial election as few voters have any information on a potential judge’s qualifications other than their party identification.  The Journal called for public funding of judicial elections to reduce the corruption inherent in a system where interested parties and attorneys are able to buy favorable court outcomes each election year.  The paper stated that this should be an intermediate step:

[W]e must demand that the state legislature and governor pass legislation at least to support public funding of judicial elections. Merit selection of judges would be better still, but public funding would lessen corruption immediately.