Last week, the United States Supreme Court ruled on three landmark cases: Shelby County v. Holder, Hollingsworth v. Perry, and US v. Windsor. All three of these cases dealt with politically charged topics: the issue in Holder was whether the preclearance requirement of the 1965 Voting Rights Act was constitutional (the court held it was not); Hollingsworth dealt with the issue of standing in a lawsuit over California’s Proposition 8 (the court held that the appellants had no standing); and the issue in Windsor was whether Section 3 of the Defense of Marriage Act was constitutional (the court ruled it was not).
These are all controversial issues that can evoke strong emotional responses. And by and large, the two major political parties do not agree on them. Justices and judges have the difficult job of avoiding the politics and popular opinion surrounding controversial cases and deciding based on the law and the facts before them.
Even though the recent “blockbuster’ cases were on the national level, the job of our state judges is no less difficult or crucial. That is why it is essential that we have the most qualified, fair and impartial judges on the bench.
Several studies have indicated that elections are not the best way to select judges. The reason is straightforward: elected judges need the support of their constituents to get elected. This means that they have to raise money and support from lawyers and litigants who often appear before them in court.
The cost of the average Pennsylvania Supreme Court race approached $3 million in 1995. And in 2009, candidates Joan Orie Melvin and Judge Jack Panella raised a combined $5.4 million. As stated by former Justice Sandra Day O’Connor in her concurring opinion in Republican Party of Minnesota v. White, “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary.”
Judges are guardians of our rights and freedoms and should be selected by their ability to uphold the law and protect the Constitution. Under a merit selection system, judges are chosen based on qualifications rather than fundraising prowess, party affiliation or the luck of a recognizable name. It’s time to give Pennsylvanians the vote on how we select our judges.
Wednesday’s primary election in Washington state is further evidence that where voters have little or no information about one or both of the candidates running for office, they may rely on other factors — such as the way a candidate’s name sounds or what they assume the name implies about a candidate’s race, ethnicity, or background — to make decisions. Those other factors typically have no relevance to a candidate’s qualifications for the bench.
As the Associated Press reports, little-known Seattle area lawyer, Bruce Danielson collected over 40% of the vote in the primary despite the fact that he did not raise money, did not campaign, had no endorsements and attended no candidate forums. In contrast, his opponent, Washington Supreme Court Justice Steve Gonzales, who was ultimately victorious in , little-known Seattle area lawyer, Bruce Danielson collected over 40% of the vote in the primary despite the fact that he did not raise money, did not campaign, had no endorsements and attended no candidate forums. In contrast, his opponent, Washington Supreme Court Justice Steve Gonzales, who was ultimately victorious in Buy Levitra cheap cialis online the Levitra primary, engaged in a traditional campaign.
Mr. Danielson’s performance has raised eyebrows among election watchers. University of Washington professor Matt Barreto has hypothesized that one reason for Mr. Danielson’s success was his name. “When voters find themselves with very limited information, that’s when names and race absolutely factor in,” Barreto said. “They’ll try to infer positions about the candidates by their names, and they’ll misapply stereotypes to the candidates.”
Judicial elections are broken. Judges should be selected based on qualifications, not their last name or ballot position. Merit Selection provides the public with meaningful opportunities for input while ensuring that the judges who ultimately take the bench are qualified.
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, Bruce Danielson
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, Matt Barreto
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According to the Texas Tribune, Texas Supreme Court elections are already becoming heated. Former district court judge, John Devine is running against eight-year incumbent Justice David Medina in a Republican runoff election.
John Devine has taken a grass roots approach to the election. Justice David Medina has the support of Republican elected officials, and he has traveled
the state introducing himself to voters.
Both candidates have had their fair share of controversies. In 2008, Justice Medina was indicted in an arson case causing $1 million in damages to his home. Charges against Justice Medina were dropped. “Afterward the Harris County grand jury’s foreman said the dismissal of the charges had been politically motivated.” In 1997, Devine was sanctioned by the Texas Commission on Judicial Conduct for “using court chambers to announce his run for Congress.” He has also struggled to keep the 10 Commandments in his courtroom and is an anti-abortion activist. “At a June rally in Fort Worth, Mr. Devine told the crowd he had been arrested 37 times while protesting abortion clinics. . . . His activism on behalf of anti-abortion causes raised concerns when it appeared likely that he would hear cases related to abortion laws.”
According to the Statesman, one recent controversy between the two involves Devine’s motivations for running against Justice Medina. Scott Link, a former district judge, and Frank Harmon, an attorney, claim that Devine targeted Medina because “‘he had a Mexican name’ and was therefore vulnerable in a GOP primary.” Devine claims these statements are untrue and dishonest. The Statesman reported that Devine thinks this is an attempt to distract the public from Justice Medina’s 2002 driving while intoxicated charges, “his trial ended in a hung jury — and a $35,000 Texas Ethics Commission fine for improperly spending campaign money on personal travel.”
The Republican primary runoff election is scheduled for July 31, 2012. As the date nears, how much more time and money will be spent pointing fingers? Is this how we should be choosing our judges?
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The House Judiciary Committee is scheduled to vote on the Merit Selection legislation (H.B. 1815) next Tuesday, June 5. A favorable Committee vote would send the bill to the floor for consideration by the entire House of Representatives. Bringing the Merit Selection Bill to the floor is a crucial step in amending the constitution – a process that culminates with Pennsylvanians having the opportunity to vote in a referendum on whether to change the current judicial selection process. Our 2010 survey revealed that 93% of PA voters want the opportunity to vote on whether to change how we choose appellate court judges.
Please take the time to contact the members of the House Judiciary Committee and urge them to vote YES and send the Merit Selection bill to the floor for further consideration. It has been more than forty years since Pennsylvanians had the opportunity to decide how judges were selected and it is high time we
were given the chance to make our voices heard.
During yesterday’s House Judiciary Committee meeting,
Chairman Marsico announced that several bills, including the Merit Selection legislation, would be held over for consideration at a future meeting. Although we are disappointed in the delay, we are optimistic that the legislation will be considered at an upcoming meeting, and we are hopeful that the Committee will favorably report the bills out to the full House. In the wake of the indictment of a sitting Supreme Court justice for alleged illegal political and campaign activities, isn’t it time to give the people of Pennsylvania the opportunity to decide whether there is a better way to select our appellate court judges?
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An editorial in the Scranton Times Tribune argues that the indictment of Justice Joan Orie Melvin on charges of political corruption illustrates the need for merit selection in Pennsylvania. According to the editorial, “The charges go to the heart of the commonwealth’s folly in conducting elections for appellate court seats, rather than filling those seats through a merit-selection screening process and gubernatorial appointment with Senate confirmation.”
Justice Orie Melvin was indicted Friday on nine counts relating to her alleged use of state-funded staff and resources for her campaign for the state Supreme Court. Pursuant to a Supreme Court order, she has been suspended from all judicial and
administrative duties. She will continue to receive pay and benefits.
The editorial argues that “[j]udges are supposed to be politically neutral but Pennsylvania’s system contradicts that goal. Judicial candidates solicit contributions from lawyers and narrow-interest groups with business before the courts. They seek the favor of political parties, which is the opposite of neutrality.”
This kind of politicking is detrimental to the Pennsylvania justice system. As PMC’s Executive Director Lynn Marks stated in a Patriot News article, “Judicial elections require candidates to campaign, participate in very partisan primary processes and fundraise, really blurring and eliminating the distinction between them and politicians. Asking them to go through this partisan process and then be nonpartisan starting after election day, it just doesn’t make sense.”
Hopefully, the House Judiciary Committee, which is scheduled to vote on Merit Selection next Tuesday, will use the Justice Orie Melvin saga as a cautionary tale against judicial elections and vote the Merit Selection bills out of committee.
As the state legislature prepares to vote on an amendment to the Pennsylvania constitution that would do away with partisan judicial elections, an editorial in the Philadelphia Inquirer expects that the indictment of state Supreme Court Justice Joan Orie Melvin will serve as a pointed reminder of why such an amendment is necessary.
Melvin faces nine criminal counts alleging that she used her taxpayer-funded staff to do political campaign work while running for her state Supreme Court seat. Melvin has maintained her innocence and vowed to fight the charges. Nevertheless, this scandal has cast a dark cloud over the state’s highest court and has forced the other justices to take action to restore public confidence. Melvin was relieved of all court duties on Friday in an effort to respond to “a compelling and immediate need to protect
and preserve the integrity” of the court.
The Melvin charges bring to light the unfortunate truth that judicial elections can turn judges into politicians that are sometimes “all too willing to break the rules to get elected.” It’s time that judges got out of politics and returned their focus to the fair and impartial administration of justice. “The Melvin case has become Exhibit No. 1 on the need to enact the judicial merit-selection legislation pending in Harrisburg.”
The Pittsburgh Tribune-Review reports that some candidates for the 2013 judicial elections in Allegheny County have announced their candidacies on Facebook. Well, of course they have. Facebook is free, easy to use, and a great way to get a message
out. But, at least one candidate — an assistant district attorney — has taken down his page in light of questions about the propriety of using Facebook at this early stage.
The Canons of Judicial Conduct limit when judicial campaigns can raise money, but there are not clear rules about “announcing one’s candidacy.” As PMC’s Shira Goodman explained, however, “People would see this person is running for judge and the person might say, ‘Maybe I should give them money,’ ” Goodman said. In short, beginning a campaign this early and this way can have unintended consequences.
But the real problem is not Facebook; it’s that we choose judges through a system that makes them campaign and raise funds. Electing judges is the real recipe for trouble.
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, Pittsburgh Tribune-Review
, Shira Goodman
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.
Judge Nels Swandal of the Montana District Court has come under fire for a letter he wrote soliciting donations on behalf of Judge Laurie McKinnon. Judge McKinnon who is campaigning for a seat on the Montana Supreme Court, acknowledged receipt of the letter, but declined to comment on its contents. She stated that she did not believe that the letter would jeopardize Judge Swandal’s ability to be fair or impartial.
In the undated letter, Judge Swandal referenced his own failed 2010 campaign for Montana Supreme Court and noted that “money was one of the most difficult aspects of the campaign”. The letter further stated that he “would be grateful if [donors] could generously give what [they] can”. The McKinnon campaign has acknowledged that it received, reviewed and forwarded the letter as a fundraising effort.
The Montana Code of Judicial Conduct expressly prohibits “soliciting or collecting money on behalf of a judicial candidate”. Complaints regarding alleged violations of the Code of Judicial Conduct are brought before the Judicial Standards Commission. Head
of the Commission, Susan Parshall stated that she has seen a copy of the letter, but that she cannot disclose whether a complaint has been filed. If a complaint is filed, the Commission will initiate an investigation to determine whether there has been any wrongdoing and what, if any, disciplinary actions are appropriate. Sanctions range from a private admonition to removing the judge from office.
By continuing to elect judges, we will continue to find ourselves in complicated situations such as this. It’s time to get judges out of the fundraising business, and the best way to accomplish that is through implementation of a merit selection process.