Archive for the 'Judicial Elections' Category

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 10 2014

Cash Still King in Texas Judicial Elections

What’s the most important qualification a person needs to become a judge? Perhaps a sense of fairness, integrity, or knowledge of the law? Each of these qualifications are certainly important to becoming a judge, however, if former Texas Judge Steven Kirkland’s story is any indication, in Texas the most important qualification is money.

 

Texas is one of only 6 states (including Pennsylvania) that elects all judges in partisan elections. So when then judge Kirkland ruled against Houston based attorney George Fleming, in a 2011 case, Fleming took advantage of the judicial election system by seeking out and bank rolling a challenger to run against Kirkland in the democratic primary. Fleming’s investment paid off and Kirkland lost.

 

Money: 1 Judicial Qualifications: 0

 

Kirkland is currently running for judge in the 113th district in Texas, rather than his old seat in the 215th. Yet once again, Mr Fleming is having none of it. Still incensed about Kirkland’s decision against him, Fleming is currently bank rolling Kirkland’s primary opponent for judgeship in the 113th district of Texas.

 

The results of this current race remain to be seen, however, that’s hardly the point. Instead what we can learn from Kirkland’s experience, is how judicial elections allow money to skew what it takes to become a judge. Judges should be selected based on qualifications, integrity, and judicial temperament, not campaign acumen or fundraising prowess.

 

Kirkland may have been the fairest judge, the smartest judge, and demonstrated the most integrity amongst his colleagues. However, because he had the temerity to rule against Fleming, his career was derailed by a mountain of cash and Texans were deprived of a qualified judge.

 

Although nothing so extreme has happened in Pennsylvania, the expensive partisan judicial election system is ripe for abuse. Here too we can only hope that the judges who manage to raise the most money to get elected, also happen to be the most qualified to serve on the bench.

 

Or we could select them based on merit.

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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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Feb 25 2014

Playing Games with Justice

There is something peculiar happening in the LoneStar State this judicial campaign season. An impending Republican primary for Texas Supreme Court, has made strange bedfellows of Democratic trial attorneys, and Republican challengers, with the former raising money for the latter.

 

According to the Houston Chronicle, a coalition of Texans led by Democratic trial attorneys John Eddie Williams and Lisa Blue Baron, recently held a fundraiser for the political action committee Balance PAC, which supports three Republican challengers in primary races against incumbent Texas Supreme Court Justices. Political observers believe that the bipartisan fundraiser is an effort by Democrats to unseat incumbent Republican judges through primary challenges. This is just another symptom of Texas’s highly contentious judicial selection model.

 

Texas’s system of partisan judicial elections has, for years been fueled by special interest money from both sides of the aisle. Efforts to reform this system have

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equally been dogged by both political parties, making money a major issue in Texas’s judicial selection scheme.

 

Several attendees of the fundraiser were critical of Texas’s judicial selection scheme, including Republican plaintiff’s lawyer Mark Lanier. In a quote that seems the capture the dilemma that lawyers face in Texas under this system, Lanier stated “I think the partisan election of judges is the worst possible way to choose judges. I am not a fan, but I’ve got a responsibility to play in the system.” Balance PAC spokesman Eric Axel further noted that “This is a broad coalition of Texans who believe the court has been taken over by multinational corporations,” referring to the perception that corporations generally win on appeal in Texas, because they have the Supreme Court in their pockets.

 

Unfortunately, Pennsylvania also has partisan judicial elections. Unlike Texas, where the parties are working together to game the system, however, in Pennsylvania, the parties are working together to reform it. Last fall, Democratic Representative Brian Sims, joined Republican Representative Bryan Cutler, to introduce judicial merit selection legislation. This legislation would eliminate the perception that judges are influenced by campaign contributions and demonstrate Pennsylvania’s leadership in judicial reform. It’s time for Pennsylvania to move forward on merit selection for appellate judges.

 

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Nov 21 2013

Bipartisan Duo Introduces Merit Selection Legislation

The two major political parties are sharply divided on many issues. Some issues are “Republican.” Others are “Democratic” But merit selection is neither. As stated by Rep. Bryan Cutler (R-Lancaster), “merit selection transcends political ideology. It’s Republican. It’s Democrat. It’s bipartisan.”

At a news conference announcing legislation to institute merit selection at the appellate court level, Rep. Cutler was joined by Rep. Brian Sims (D-Philadelphia) and Rep. Pamela DiLissio (D-Montgomery). Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, and Susan Carty, President of the Pennsylvania League of Women Voters, were also in attendance.

The merit selection resolution was introduced and referred to the House Judiciary Committee on Monday, November 18, 2013. The text of the bill is available here.

“There are no red herrings here. Both parties are supporting [the merit selection legislation] because it is really good policy,” said Rep. Sims.

Merit selection is good policy because it doesn’t make sense to use a completely partisan process to select people for a job that is nonpartisan. As stated by Marks, “justice is not conservative, Republican, liberal, or Democrat.” Instead, justice is all about “ensuring that all Pennsylvanians can come to court knowing their cases will be heard by fair and qualified judges.”

According to Rep. Cutler, this goal is frustrated by judicial elections because the political process has rewarded name recognition and the ability to raise money rather than credentials. Rep. Sims added that spending in judicial elections is very high and “three-quarters of Pennsylvanians think that judges are [influenced] by campaign contributions.”

Compounding these problems is the fact that media coverage of judicial elections is sparse, and “because of all the pressures of the day and the fact that people are busy, most voters cannot do their homework on judges,” Rep. DiLissio commented. As a result, voters often cast their ballots based on a variety of factors that have nothing to do with the candidates’ qualifications. For instance, people commonly vote for candidates that share their political affiliation or are from their hometown. Voters will also frequently vote for candidates that have familiar sounding names. This turns judicial elections into a bit of a crap-shoot, and the selection of judges should not be left to chance.

Under merit selection, there would be an exhaustive vetting process. A 15-member bipartisan citizens’ nominating commission would review the qualifications of prospective judges, including their legal experience, reputation for ethical behavior, and fairness. The governor would then nominate one candidate for each open appellate court seat from a short list created by the commission, and the Senate would confirm or reject the nominees. Confirmed judges would serve a four year term before facing the voters in an uncontested retention election, and they would run for retention every ten years thereafter.

It is important to remember that only the people can change how judges in Pennsylvania are chosen. Any change in the current system must be approved by the voters in a constitutional referendum, so the people have the final say. But the people should vote to approve merit selection because “the election system has proven to fuel the public’s lack of trust, faith, and confidence [in the judiciary]. Pennsylvanians have the right to have their faith restored,” said Rep. DiLissio.

 

 

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Nov 19 2013

Let’s Stop Playing “Pin the Tail on the Donkey (or Elephant)”

According to a recent editorial in the Pittsburgh Post-Gazette, the judicial elections that just took place were “another game of pin the tail on the donkey (or the elephant).” Due to limited information about the candidates, many voters were forced to rely on “vague name recognition, ethnicity of names or political affiliation- all of which have little to do with finding the best judge.”

 

Making matters worse, voter turnout was extremely low- in Philadelphia, the preliminary figure is 11.5 percent. The turnout in many other counties is believed to be in the single digits, and it has been estimated that only 14 to 17 percent of all eligible voters statewide cast ballots. Unfortunately, low voter turnout is the rule rather than the exception.

 

As stated by the Post-Gazette editorial board, there is a better way to select judges. That way is merit selection.

 

Under a merit selection system, a knowledgeable panel of lawyers and non-lawyers would thoroughly vet judicial candidates. For instance, they would review applications and writing samples, hold interviews and public hearings, and conduct background checks. The governor would then appoint nominees from lists prepared by the commission, and the Senate would confirm or reject them. After four years, appointees would face the voters in retention elections, and they would run for retention every ten years after that.

 

Reps. Brian Cutler (R-Lancaster) and Brian Sims (D-Philadelphia) have sponsored a resolution to institute such a system in Pennsylvania. The Post-Gazette applauded its introduction, stating that “it’s past time that something was done. The expenses of appellate court races is out of hand and all the money brings with it the threat of corruption.” Pennsylvanians for Modern Courts joins the Post-Gazette in commending the resolution.

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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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