Archive for the 'Judicial Elections' Category

Sep 10 2014

Names Should Not Be the Name of the Game

An editorial by Brent Larkin at the Northeast Ohio Media Group laments the state of the judicial election process in Ohio.  He writes about the bottom-of-the-ballot matchup between two Cuyahoga County Common Pleas candidates with near-“royal” names.

McMonagle vs. Gallagher.  In the red corner, the son of the incumbent, the beneficiary of a 15-1 McMonagle family record in Ohio judicial elections dating back to 1966.  In the blue corner, the niece of an appellate judge in the Ohio’s 8th district, based in Cleveland.  In fact,  the Gallagher name is so well known and liked in that district that fully 25% of the judges on the bench there share the last name.  That’s three out of twelve , including two Eileen Gallaghers.  Bushes, Kennedys – step aside.

Larkin’s point is not that this is the premier race of the 2014 political season.  On the contrary, voters in Cuyahoga County have 21 other races to decide before they even reach this one on their ballots.  There are 59 elected judgeships in the county – a lot for busy voters to keep track of.  But when they get to the polls, Larkin fears, “few things matter less to the electorate than qualification,” and “nothing matters more to them than a candidate’s last name.”

This isn’t a unique problem to Ohio, of course.  Just look at Pennsylvania. Our judges are often elected for arbitrary reasons  – whether it is because of their last names, party affiliations, connections to the right people, or the resources in their campaign coffers.  This leads to judges that are often under-qualified or unqualified because of a system that thrusts them into roles of immense power over the day-to-day lives of citizens.

Of course, there are plenty of judges who are worthy of the bench.  But all too often voters lack the information to ask the right questions.  How much experience does a judicial candidate have? What are their stances on important issues?  Do they display the work ethic, efficiency, temperament, and respect for the law that a successful and fair judge needs?

The system of electing judges in Pennsylvania perpetuates low-information, “sound-bite” voting and rewards many of the candidates that would be the most burdened if information about them were to come to light, whether to voters or to an independent commission.  Sunlight, as the saying goes, is the best of disinfectants.

The best way to elect an independent and impartial judiciary in Pennsylvania is to reward candidates based on merit, not on a wildcard such as last name. Public trust in the judiciary is crucial, and low-turnout elections don’t usually produce judges worthy of the confidence of the citizenry.

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Aug 05 2014

Expensive Judicial Elections are an Assault on Our Courts

Published by under Judicial Elections

Tennessee courts are specifically tasked with deciding “on the constitutionality of legislation passed by the General Assembly” and to “consider the legality of administrative policies and regulations.”  Why then, are so many politically motivated groups spending so much campaign cash prior to the upcoming Tennessee Supreme Court retention elections?

The answer seems to be related to the Supreme Court justices appointing an attorney general who did not join other attorney generals in a lawsuit opposing the Affordable Care Act. For the record, once the Tennessee Supreme Court appoints an Attorney General, the Attorney General is completely independent and does not answer to the Court.

Regardless of the underlying motivations, the amount of money spent in an attempt to influence the retention elections is emblematic of recent trends of increasingly political and expensive judicial elections. According to Justice at Stake, the Tennessee Supreme Court retention election has set a record by exceeding $500,000 in television advertisement spending.  Tennessee Forum, a group that opposes retaining the three justices up for election, has contributed $245,000.  Likewise, Keep Tennessee Courts Fair, a group that supports retaining the three justices, has given a considerable contribution amounting to $210,000.

Industrialists Charles and David Koch have even thrown their hats in the ring by having their organization, Americans for Prosperity, contribute significant amounts to the campaign to unseat the three justices.

Judges should be chosen (and retained) based on their qualifications including legal experience, judicial temperament, and quality of their decisions. Choosing judges (or choosing whether to retain judges) through a political process for a nonpartisan job is nonsensical.

Pennsylvania needs to start learning from the examples of states like Tennessee. We need to protect our courts from special interests and politicians that see them as just another tool in the political arsenal. It’s time for Harrisburg to stand up to entrenched special interests and have a serious discussion about commonsense reforms like merit selection.

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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 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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