judgesonmerit.org

This week, Alabama State Supreme Court Chief Justice Sue Bell announced her resignation effective August 1st, 2011. In her statement, she cited the failure of AL courts to modify their judicial selection system as one of her reasons for leaving. “Alabama appellate court justices should be selected either on merit, and retained or rejected by a vote of all the people, or at least cam­paign without the added po­litical emphasis of party la­bels,” declared Cobb. According to former president of the Alabama State Bar Association, J. Mark White, “She tried every way possible, along with the bar, to get a more civilized and economical way to select our judges.”

The numbers representing campaign costs in Alabama’s partisan elections are astounding. A study conducted by Justice at Stake revealed that AL Supreme Court candidates raised over $40.9 million in the past decade. According to a Thomson Reuters News & Insight article, “Cobb herself received $2.62 million in contributions during the 2006 Alabama Supreme Court election, a multi-candidate election that was the costliest state judicial race ever, with candidates raising a total of $13.5 million, according to Follow the Money.” In her resignation, Cobb explained that this method of judicial selection “perpetuate[s] the perception that judges are selected more on campaign contributions than on ability.”

Calls for judicial selection reform can be heard throughout the country. New York recently changed their recusal standards in an effort to restore public confidence in judicial impartiality. An impassioned editorial beseeches Alabama to do the same: “If anything, Alabamians should question judges’ impartiality even more than people do in other states, and the numbers from national polls already are high. In a Harris Poll last June, 71 percent of those surveyed nationally believe campaign contributions to judges have some or a great deal of influence on their decisions.”

The Justice at Stake survey lists Pennsylvania second after Alabama in campaign contributions, receiving around $21 million. However, recusal rules alone will not solve the problem. PMC agrees with Chief Justice Cobb that judges should not be obligated to raise millions of dollars to earn a seat on the bench and worries about qualified candidates who may be dissuaded by the need to raise enormous amounts of money. Cobb explained, “Another statewide race at this point in time would require me to raise millions of dollars while constantly endeavoring to appear and remain impartial and would require me to sacrifice precious time which I could be spending with my family.”

In response to recent criticism that financial support from George Soros is an attempt to “stack the courts,” Executive Director Lynn Marks affirmed the virtue of merit selection in an interview with FoxNews.com. “Merit selection would end the money race and get judges out of the fundraising business.” Marks further critiqued judicial elections’ emphasis on political connections saying that potentially qualified candidates “don’t put their name in for nominations because they think they don’t have the political connections or access to dollars.” Politics play an especially significant role in Pennsylvania’s judicial elections in which candidates identify with either the Democratic or Republican Party and must raise huge amounts of money to win their races.

Marks highlighted the need for merit selection for appellate courts explaining, “judges should resolve disputes based on evidence – they’re not supposed to be responsive to public pressure.” Contrary to assertions that appointment of judges through merit selection is undemocratic, merit selection actually requires that the public support it. As Marks said, “Merit selection requires a change in the Constitution, so a bill must… go before the public. So when people say, ‘oh, you’re changing the way we vote’ — yes, but only if the people want to change the way we vote.”

Pennsylvania State Senator Jane Earll (R-Erie) has introduced two bills that would move Pennsylvania toward Merit Selection of appellate judges. Senate Bill 843 would amend the state Constitution to allow Merit Selection of appellate judges. Senate Bill 842 would modify state law to create the necessary implementing procedures. Both measures were referred to the Senate Judiciary Committee.

Making the transition to Merit Selection requires amending the state constitution. An amendment bill would need to pass in two consecutive sessions of the General Assembly, and then receive a majority vote in a public referendum.

The Des Moines Register reports that a federal judge has dismissed the lawsuit challenging the presence of lawyers elected by lawyers on Iowa’s nominating commission. The lawsuit, brought by Indiana based lawyer James Bopp, contended that these seven lawyer members should be excluded from the nomination process. The suit argued that the procedure violated the constitutional equal protection rights of the four Iowan plaintiffs.

United States District Court Judge Robert Pratt dismissed the case, calling these arguments “fatally flawed.” Describing his reasoning, Judge Pratt wrote in the ruling:

“Undoubtedly, the right to vote for political representatives is the bedrock of American democracy. In this case, however, plaintiffs are asking the court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new 14^th Amendment ‘right’ to greater influence the selection of judges.”

An Iowa press release described Attorney General Tom Miller’s response to the decision: “Today Judge Pratt very soundly upheld the will of the people of Iowa. This is a significant ruling that affirms our right as citizens to choose how we select our Supreme Court Justices.”

Over at MinnPost.com, Eric Black offers a review of a forum held yesterday on whether to change Minnesota’s judicial selection system from elections to Merit Selection.  Black notes that the forum got a little heated as the participants offered their views:

That was the topic of a lively panel at the Humphrey Institute in which the panelists came about as close to calling each other names as you ever hear at a Humphrey panel, and the audience got as close to rowdy as I’ve ever seen at a Humphrey panel.

We know people have strong views about judicial selection, but it’s usually best to keep things civilized and let everyone have their say.  In our mind, former Chief Justice Eric Magnuson made a strong case for moving to Merit Selection, focusing on the way judicial elections undermine public confidence in the impartiality of the judiciary.  Black summarizes Magnuson’s arguments:

When you go in front of a judge, you’d like to feel that the playing field is level.

Turning judicial campaigns into partisan dogfights will create the opposite situation.  Judicial candidates won’t be dumb enough to make campaign promises to rule particular ways on issues that might come before them in the courtroom. . . but they are gonna use buzz words and catch phrases and they’re gonna appear before particular groups in order to raise money. That’s what competitive elections are all about. Campaign spending in judicial elections is rising fast. . . inevitably creating the impression that the winning candidate will be influenced by the interests of their contributors.

Do you want that element, that bad smell, injected into your choice of judge. . . .The question won’t be whether you’re going to appear in front of a good judge or a bad judge. The question increasingly will be whose judge are you going to appear in front of?

We agree that judicial elections leave a bad taste and creative negative public perceptions about the courts.  There is no perfect system, but Merit Selection gets judges out of the fundraising business.  That sounds good to us.

According to a profile in the Pennsylvania Law Weekly (subscription required), the Pennsylvania Association for Justice (formerly the Pa. Association of Trial Lawyers) is taking a new look at Merit Selection.  New President Tim Conboy explained that he is appointing  a commission to study the issue in response to requests of the membership.

“There’s no question that if we would change our position it would be a major shift,” Conboy said. “It’s something that people are discussing across the country right now and there have been several editorials. We thought it was time to at least look at our position and figure out what the majority of our members support and clarify our position on the issue.”

We certainly welcome traditional opponents taking a new look at Merit Selection, and we are hopeful that the Pennsylvania Association of Justice will join the many other groups that have concluded that judicial elections are not working for Pennsylvania.

Pennsylvania Supreme Court Chief Justice Ronald Castille recently told the Pennsylvania Prothonotaries’ and Clerks of Courts’ Association that there is no reason for these positions to be elected. “The way I see it, it should be a professional person’s job, and they should be answerable to the court system.”

The remark sparked an article in Philadelphia’s The Bulletin on Chief Justice Castille’s views regarding merit selection for judges. The justice is in favor of abolishing the current system of judicial elections for appellate level judges, including the Supreme Court. The Bulletin talked to Pennsylvanians for Modern Courts Deputy Director Shira Goodman.

It’s not new. If you look back, [Justice Castille] talked about this for a long time. He’s talked about the electoral process not being the way for many years.

Castille is one of many high-profile government officials, as well as reform groups and regular citizens, who have called for an end to judicial elections. Governor Rendell has spoken out on multiple occasions about the need to switch to a merit-based selection process for the appellate bench. Said the governor’s press secretary Gary Tuma,

The governor has on several occasions, here in his second term, suggested that we should move to a judicial merit selection instead of electing them in the polls. The important thing is to free justices from this requirement of raising money from the legal community, and, in some cases, some people who are going to be appearing in front of them in court.

The call for merit may become even greater due to the recent turmoil on the Supreme Court, a focus of the Bulletin article. Justice Joan Orie Melvin is currently undergoing investigation for improperly using taxpayer money and government resources for her recent campaign. The Chief Justice has also been subject to attacks that he mishandled the proposed Philadelphia Family Court project.

A Sunday editorial in the Cleveland Plain Dealer explained that, due to a 6^th Circuit U.S. Court of Appeals ruling, Ohioans may be forced to rethink how the state selects its judges. This may prove to be a blessing in disguise for the Buckeye state.  

The 6^th Circuit struck down Kentucky rules prohibiting judicial candidates from advertising political party affiliations and directly soliciting voters for campaign contributions. Holding that such restrictions were a violation of the First Amendment, the 6^th Circuit decision has become part of an alarming trend making judicial elections more and more like elections for other public offices. The trouble is Ohio has rules on the books similar to those struck down in Kentucky.

Writing for the majority, Circuit Judge Jeffrey S. Sutton said,

While [party] political identification may be an unhelpful way to pick judges it assuredly beats other grounds, such as the all-too-familiar formula of running candidates with familiar or popular last names.

Judge Sutton’s argument makes a certain sense; voters are given woefully inadequate information about judicial candidates and often vote solely on name-recognition. But Judge Sutton’s suggestion that identifying political affiliation will be an improvement ignores the unique function of the judiciary. The Third Branch was intended to remain above the political fray. But across the country, as safeguards such as those in Ohio and Kentucky are struck down, it will become increasingly difficult to prevent judicial elections from devolving into the hyper-politicized contests we see for other offices.

And perhaps, that is the point. States cannot have it both ways. An election is an election and no amount of safeguards can effectively keep the influence of politics from seeping in.    

Explains the Plain Dealer,

The constitutional issues flagged by the federal Appeals Court in the Kentucky case indicate that Ohio may someday find itself facing the same fork in the same road: Either the state gives its judicial candidates free rein — with, yes, a risk of wild electioneering — or the state finds a better way of choosing judges than the method it uses today.

For states concerned with upholding the integrity of the bench, the choice seems clear: find a better way. But they need not look far. Variations of Merit Selection, a hybrid of elective and appointive systems, are already in place in the majority of U.S. states. Pennsylvania legislators are currently considering such a system.

Can Ohio find a better way as well? It “shouldn’t be hard,” reads the editorial,

Almost any other method would be an improvement on the oft-criticized — and deservedly so — “name game.” 

Speaking to the Utah State Bar on Saturday, U.S. Supreme Court Justice Clarence Thomas said it “could be a problem” to have judges selected through a political process.

But a “political process” is precisely what is in place for the state of Pennsylvania. Unlike the federal appointment system, or one of the various merit selection methods employed by other states, Pennsylvania chooses all of its judges in hotly contested partisan elections in which candidates are forced to raise money from potential litigants.

Justice Thomas is not the first Supreme Court justice to condemn the politicization of the judiciary. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O’Connor have both spoken out forcefully against the practice of judicial elections.

In March, Justice Ginsburg told a crowd at the National Association Meeting for Women Judges that given the opportunity, she would abolish judicial elections. “If there’s reform I would make, it would be that.”

Justice O’Connor has been outspoken as well, decrying the high price tag on judicial elections and the subsequent flow of political dollars into our state courts.

This is what she had to say about Pennsylvania:

Right now, Pennsylvanians are being shortchanged by the way their judges are chosen.  Judges running for election have to raise campaign contributions from individuals and organizations that appear before them in court.  In fact, the average cost to run for a state Supreme Court seat is staggering – reaching into the millions of dollars. 

Two things are true: (1) elections are inherently political and (2) judges are intended to operate outside of the political sphere. Yet we have judicial elections. This obvious and unfortunate mismatching exists to the detriment of Pennsylvania’s court users. It may not be possible to truly eradicate politics from any system. But merit selection provides a significant and undeniable step in that direction.

Friday’s Wisconsin State Journal editorial asks the question,

Shouldn’t a Supreme Court candidate’s legal skill and fairness be more important than ability to raise campaign money and win partisan support?

The answer seems clear. Yet, in the wake of the “Gableman affair,” in which the state Supreme Court deadlocked along party lines over a complaint accusing Justice Michael Gableman of lying about an opponent in a campaign ad, Wisconsinites are realizing that “legal skill and fairness” may be taking a back seat due to the state’s practice of electing its judges.

The increasingly partisan nature of Supreme Court elections is rapidly erasing the line that once insulated the judicial branch of government from the partisan politics of the legislative and executive branches.

The “Gableman affair” has been characterized as a tipping point.

From the campaign to the ethics case, politics shaped a process that should have been shaped by the law.

But there may be a silver lining. Many are now second-guessing the soundness of judicial elections. The Wisconsin State Journal, along with the Beloit Daily News and Milwaukee Journal Sentinel, has advocated for replacing this politically driven process with a system of merit selection. Merit Selection, in which candidates are evaluated based on their qualifications by a nonpartisan commission, would provide for greater transparency in the judicial selection process and ensure that the most fair and candidates reach the bench.

The editorial closes with an answer to its own question.

Wisconsin should restore public trust in the Supreme Court by shifting to merit selection of justices.