The Merit Selection Panel must consider all applicants for the position [and] . . . applications must be submitted only by applicants personally. . . [In May,] the panel will report to the court the names of the five people it determines to be the most qualified. . . The district court will then make the selection from the names of the persons recommended. [Additionally,] before a new magistrate judge can take office, he or she must undergo a full background investigation by the FBI and an IRS tax check.

This panel is somewhat similar to the first step of the Merit Selection process supported by PMC: screening and evaluation by a citizens’ nominating commission that recommends the most qualified candidates to the governor. The ideal commission would be composed of men and women, non-lawyers and lawyers, from across the state and from diverse backgrounds.  This allows the appointment power to be shared, achieves a bipartisan commission and ensures a direct role of the public.  We hope the use of Merit Selection by federal courts in Alabama, a state plagued by hyper-partisan judicial election campaigns, will serve as a model for local judicial selection reform.

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.

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.

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.

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.

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.

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)

[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.

The allegations alone ought to be enough to shake the public’s faith in the state’s system of electing its most powerful judges.

No matter what the outcome of the inquiry into the Orie sisters, the state judiciary would not have to weather such controversy if its top judges were chosen through a merit-based system of appointment, with voters’ concurrence through nonpartisan retention elections. . . .

With the Melvin controversy bringing renewed attention to Pennsylvania’s discredited system of electing judges, Harrisburg officials should seize the moment and move ahead on judicial reform.

We agree, and we hope the people of Pennsylvania will be given the chance to decide for themselves whether there is a better way to select appellate court judges.

 Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing.  Lost in the process is the need for experience, independence and impartiality.

The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:

Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.

Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.

A poll conducted by Justice at Stake has shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today.  This highlights the dangers of judicial elections.  Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.