judgesonmerit.org

The state legislature returns to business next week, and one of the items still pending before the House Judiciary Committee are the Merit Selection Bills (H.B. 1815 and H.B. 1816).  To start the constitutional amendment process — which will  culminate with the people voting on whether to change how we pick appellate court judges — the House Judiciary Committee must first vote the bills out.  This would send the bills to the full House for consideration.  Please contact members of the House Judiciary Committee, tell them you support Merit Selection, and ask them to vote the bills out.  Remember, this is a critical step to getting this issue on the ballot so the people of Pennsylvania can decide whether it’s time to change how we select appellate court judges.

The Miami Herald has reported that Florida’s Judicial Nominating Commission has adopted a policy that bans members of the commission from financially contributing to or actively participating in any campaigns for state judicial elections. This measure prevents the commission, which compiles a list of candidates from which the governor must select his appointees for appellate judicial seats, from entangling itself in races for local office or retention elections in which the commission has no role. Supporters of the measure pointed out that such involvement in campaigns creates an appearance of impropriety, and that commission members should refrain from being active in lower court races in the event those judges are eventually nominated to the Supreme Court.

Opponents produced a compromise measure that would have merely prevented commission members from explicitly using their positions to support campaigns. The commission rejected this proposal.

We believe that a detached, politically-disinterested nominating commission is essential to the functioning of an effective Merit Selection system. We also believe that commission members, like judges, should not become mouthpieces for political causes or allow their own leanings to jeopardize the public standing of the judiciary. As such, we support the recent resolution of Florida’s Judicial Nominating Commission, and hope that if the people of Pennsylvania get the chance to vote for Merit Selection, that any future nominating commissions are governed by a similar code of conduct.

An Oregon committee led by retiring Chief Justice Paul De Muniz will study the feasibility of changing the way Oregon’s appellate judges are selected. Currently, Oregon judges are elected in non-partisan elections. The committee will consider a number of alternatives, including merit selection.

While Oregon is not known for particularly nasty judicial elections, judges are still required to campaign for their seats. That means that they must raise money and seek endorsements. In today’s era of the unlimited of super PAC money, judicial campaigns threaten the appearance of impartiality on the part of judges. “All it takes is one hyper-politicized contest in Oregon, or one judicial election hijacked by outside interest groups, to undermine the credibility of the entire state justice system,” De Muniz said.

Any change to the Oregon judicial selection process would require an amendment to the state constitution, which must be passed by popular election. We hope that the people of Oregon will get the chance to decide whether they want to make a change.

The Sunday Currents Section of the Philadelphia Inquirer features a letter to the editor (scroll to the bottom) from PMC. The letter responds to last week’s op-ed by Professor Chris Bonneau, which purported to be a critique of Merit Selection but which really only raised questions about retention elections.

PMC pointed out that Merit Selection brings about real results that are desired by the people: “it is beyond dispute that merit selection, by eliminating the need for judicial candidates to raise funds from litigants and lawyers who may come before them, stops the flow of campaign money from those who may later be in the courtroom to the future judges who will decide their cases.”  PMC further explained that the retention elections Prof. Bonneau criticizes are part of Pennsylvania’s current elective system: all Common Pleas and Appellate Court judges are elected for ten year terms and then may stand for retention in uncontested, nonpartisan elections every ten years thereafter until they reach the age of mandatory retirement.

The key point PMC makes is this: “Pennsylvanians. . . deserve the facts about elections and merit selection,” and they deserve the opportunity to vote in a referendum election about whether to change the constitution to implement Merit Selection for the appellate courts. PMC wants the legislature to let the people decide this question, and we want the people to have good information and facts on which to base this decision.

The Knoxville News Sentinel has endorsed a plan that would preserve Tennessee’s system of judicial Merit Selection by amending the state’s constitution to reconcile its language with the system. Tennessee’s Merit Selection system has been in place for decades.  Since the state constitution provides that its Supreme Court justices “shall be elected by… voters”, the system’s constitutionality has rested on the argument that retention elections meet this requirement. As challenges to this argument and alternative judicial selection proposals occasionally arise, the state’s Governor, Lt. Governor, and House Speaker have all called for a constitutional amendment that would lend “clarity” to the debate.

The News Sentinel wonders, “why not confirm by constitutional amendment the current system that has proven to be workable?” The piece adds that “[p]opular election of the state’s judiciary is fraught with danger…” since “a popular vote… gives [justices] some burdensome obligations to special interests that have far too much influence in elections.” The editorial then elaborates that “justices must consider the law before them, not the special interests that bankrolled their election.” Finally, the state’s Lt. Governor bluntly clarifies that “we don’t want Supreme Court justices running for office.” We agree that a judge’s proper role is that of an unbiased arbiter, and not that of a politician focused on currying favor with voters.

An editorial in Tacoma, WA’s News Tribune warns its readers against the potential impact of the controversial Citizens United decision and the subsequent proliferation of SuperPACs on the state’s judicial elections. The piece describes how the decision removed long-standing restraints on campaign contributions from moneyed interests, and made no delineation between political and judicial elections. It then posits that “[i]n states that insist on using popularity contests to pick their judges, the threat to an impartial judiciary is obvious.”

The News Tribune portrays judicial elections in Washington as traditionally “quiet affairs”, generally free from Caperton v. Massey-style “influence-buying” or from candidates injudiciously advertising their positions on political issues or legal controversies. What makes Citizens United so dangerous, the paper argues, is its potential to turn the focus from judicial qualifications to each judge’s political stances. As the piece deftly illustrates, “[p]romises to rule in a particular way are the opposite of justice. All litigants deserve judges who haven’t made up their minds before hearing the cases.” The editorial concludes that

[t]he ultimate protection lies with Washington’s citizens. If voters don’t see the fundamental difference between judicial and political races, that difference will fade. Our courts will wind up on the auction block, with justice sometimes going to the highest bidder.

We agree with the News Tribune’s assessment, and hope that more states will consider switching to systems of Merit Selection, so that the unlimited campaign contributions of Citizens United will not be able to directly impact each state’s judiciary.

In Friday’s Texas Tribune, political watchdog group Texans for Public Justice decried the state’s system of partisan judicial election as fostering conflicts of interest and unprofessionalism amongst the judiciary. The group’s head, Craig McDonald, argued that Texas’ judiciary “gets 40 to 50 percent of its campaign money from the very people who are practicing before that court,” adding that “[o]ur judges act as if they’re…more politicians then they are judges in many respects.” In particular, McDonald lamented the tendency of party affiliation to draw judges into “the same ideological battles fought by candidates seeking legislative office”.  McDonald has proposed that Texas switch to an appointed judiciary, echoing Texas Supreme Court Chief Justice Wallace Jefferson’s earlier call that appointments would keep judges from bending to “political winds”.  Jefferson expressed a firm belief that “a justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted.”

The Tribune piece then highlights some examples where partisan elections  and the electorate’s lack of information about judicial candidates led to very questionable election results, quoting a University of Texas law professor that “this kind of political wrangling lower[s] the overall quality of the judicial system”.

Texas is one of a handful of states that elect all judges via a system of partisan elections, a group that includes Pennsylvania.  We hope that the people of these states, and particularly Pennsylvanians, will be given the opportunity to decide whether there is a better way to select appellate court judges.

The Daily News provided its take on Tuesday’s guilty verdict in Sen. Orie’s corruption trial, concluding that a cloud still hangs over Justice Orie Melvin that damages the Supreme Court’s integrity and furthers the call for a new system of judicial selection. The piece echoes PMC’s call for Orie Melvin to do more than just recuse herself from Allegheny County criminal appeals, but to take a leave of absence while criminal proceedings and investigations relating to her past elections are still pending. The Daily News urges Chief Justice Ronald D. Castille to pursue Orie Melvin’s suspension if she won’t step aside, arguing that “the state can’t afford the kind of prolonged and spreading stain that compromises its perceived integrity.”

The editorial then broadens its scope beyond the Orie situation, acknowledging that “both Castille and the rest of us know that the courts are never quite clear of clouds as long as members of the bench have to enter the fray of politics, fundraising and campaigning to get their jobs.” Citing Pennsylvania’s recent judicial scandals, the piece concludes that “the movement to have judges appointed instead of elected keeps stacking up evidence” and wonders “how many more examples of potentially corrupted judiciary do we need, exactly, to get that point across?”

Recent editorials in Chicago newspapers have argued that two judicial candidates in Illinois’ upcoming November elections are “reasons why voters need to focus on judicial races” and reminders “of the need to change how judges are selected…from election to merit selection. ” The Southside Star notes that Dan Degnan has won the Democratic nomination for Cook County judge unopposed despite meager experience as an attorney. Just before the March primary, the Chicago Tribune editorial outlined how 12 major bar associations had labeled Degnan “not qualified” or “not recommended”.  Degnan won the nomination unopposed after four opponents, including the judge currently holding the seat, withdrew at some point before election day. The Star attributes this abnormality to Degnan’s political connections as a favorite of Illinois’ Democratic Chairman, and the son of former Mayor Daley’s friend and political advisor. Degnan will run unopposed in the general election as well.

The Star also points to the story of sitting Cook County Judge Cynthia Brim, who was recently removed forcibly from her chambers,suspended, and charged with misdemeanor battery. The author explains that “Brim has been a judge since being elected in 1994 (retained by voters in 2000 and 2006), despite consistently poor evaluations by bar groups regarding her judicial knowledge and temperament. But the Democratic Party backed her each time, and that’s all that mattered.” Brim is up for retention in November.

The Star blames the “distressing” state of judicial elections in Illinois on “abysmal turnout” and lack of knowledge about judicial candidates amongst the electorate. In endorsing Merit Selection, the Star reasons, “It’s not perfect or entirely beyond the reach of political clout, but it’s certainly preferable to the corrupting system Illinois has now.” We agree that popular election of judges is wrought with potential for exploitation by political interests, and that Merit Selection is the best available alternative.

A Philadelphia Inquirer editorial called for the conviction of Senator Jane Orie to spur adoption of proposals for merit-based selection of appellate court judges in Pennsylvania. Senator Orie was convicted on March 26, 2012 on fourteen counts of theft of services, forgery and conflict of interest relating to her use of state-funded legislative staff to support her re-election campaign for state senate.  She was acquitted on an additional ten counts, including all charges related to her alleged use and direction of legislative staff to support the election of her sister, now-justice Joan Orie Melvin of the Pennsylvania Supreme Court. A third sister, Janine Orie, former aide to Justice Orie Melvin, is currently awaiting trial on charges that she directed both the Senator’s legislative staff and the Justice’s superior court staff to do work relating to the campaign of Justice Orie Melvin.

The Inquirer editorial notes that although Justice Orie Melvin has yet to be formally charged with any misconduct, she is reportedly the subject of a grand jury investigation. It further argues that, “The understandable calls for Melvin to step back from hearing cases at least temporarily – or for her suspension under court disciplinary procedures – are unlikely to go away.” The Justice has yet to respond to calls for her to step down. However, she has recused herself from hearing criminal cases in Allegheny County, the location of her sisters’ trials, a move that has come under fire.  As stated in the editorial, “As a probe target, it’s time for Melvin to do what’s best for the high court’s reputation by recusing herself from all cases, due to what the court-reform group Pennsylvanians for Modern Courts has correctly described as ‘the cloud of such a serious investigation.’”

This case has the potential to be much more than just another instance of a disgraced politician and a political scandal. This should serve as a wake-up call to Pennsylvanians and legislators alike. Judicial elections compromise judges and justices by forcing them to raise funds, which creates the impression that “justice is for sale”As the editorial concludes, “It’s hoped that this case will crank up the momentum for proposals supported by Gov. Corbett to get the state’s appellate judges off the campaign trail by switching to a system of merit-based appointments to statewide courts.” We could not agree more.