Apr 08 2014

What Does McCutcheon Mean For Judicial Races?

The U.S. Supreme Court recently decided McCutcheon v. Federal Election Commission (FEC), striking down aggregate limits on contributions to political candidates and party committees. Although the focus of this ruling was on federal election law, it has serious implications of state campaigns as well, particularly state judicial campaigns.

 

As a result of this ruling, individuals no longer have to pick and choose which campaigns to give to and whether to give to national parties at all, for fear of hitting their aggregate contribution limit. Now individual donors can give the maximum contribution to their national party and as many candidates as they want. With this increased money going to national parties, state party committees will most likely also see an increase in donations. It is this increase to state party coffers that will augment the already insidious effect of money in selecting judges.

 

In addition to the new money this ruling allows to flow into judicial campaigns, it also establishes a framework through which big spenders may challenge state campaign finance laws, and infuse even more money into judicial elections. The Supreme Court couched its decision on first amendment principles. The plaintiff successfully argued that the FEC’s aggregate limits on political contributions infringed on his right to free speech. So although this particular ruling only applies to federal elections, freedom of speech is a right that all citizens enjoy. Any states with similar limits in their campaign finance laws have officially been put on notice.

 

The amount of money that will flow into judicial races as a result of this ruling makes it more important than ever that Pennsylvania change its judicial selection model. We need to protect the integrity of the judiciary by eliminating the perception that justice is for sale. We can do this if we choose to select our judges based on merit, not money.

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Apr 08 2014

A Better Way to Pick Judges

Published by under Merit Selection

It’s great to be a legislator in Virginia. You have control over judicial appointments and if you ever get bored in the General Assembly, there’s likely a cushy judgeship waiting for you.

Virginia is one of only two states in which judicial appointments are decided entirely by the legislature. This method of judicial selection has resulted in power politics spilling over into the states’ courtrooms.

In 2008, Norfolk County was left with three vacant judgeships for months as a result of a dispute between Sens. Ken Stolle and Yvonne Miller. A similar incident occurred in 2012 when conservative lawmakers delayed the nomination of Tracy Thorne-Begland’s nomination to Richmond’s General District Court because he was openly gay.

Additionally, Virginia lawmakers have been making courtrooms their retirement destinations. Judges are generally reappointed until they retire, and then enjoy a generous salary and state benefits. Lawmakers often trade-in their positions in the legislature for a cushy spot on the bench, further adding to the perception of an unfair judiciary.

Despite its apparent flaws, Virginia lawmakers have been unwilling to enact any changes to the states judicial election process. A measure that would bar legislators from accepting judicial appointments within four years of leaving the General Assembly was rejected. However, the General Assembly did approve the creation of twenty-seven new judgeships.

Judicial selection practices, such as the one in Virginia, create a ‘patronage’ system in which legislators have considerable control over judicial appointments. Legislators are given indirect control of the courts by their ability to choose judges. Gaining a judicial appointment then relies upon the “connections” that a candidate has in the legislature rather than his or her qualifications.

A better way of appointing judges is through merit selection. Under merit selection, judges are evaluated based solely on their credentials by a bipartisan citizen’s nominating commission consisting of lawyers and nonlawyers, which represent the diversity of the state. Once candidates have been screened, a short list is then sent to the governor who must nominate one of the individuals on the list. The judicial nominee must be confirmed by the Senate and then will sit for a shortened term before facing the public in a yes/no retention election. In this manner, nominees are chosen not for their personal relationships, but rather for their qualifications, experience and ability to fairly uphold the law. Merit selection increases public confidence in the judiciary.

Pennsylvania should see Virginia as a cautionary tale about the pitfalls of mixing politics with the judiciary. The current expensive, partisan election of Pennsylvania judges creates a negative public perception of politics influencing a supposedly independent and impartial judiciary. In order for Pennsylvania to preserve the public confidence of its judiciary, it needs to implement merit selection.

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Mar 26 2014

Arkansas’s Judicial Business

Arkansas Circuit Judge Mike Maggio recently stepped out of the 2014 race for a seat on the Arkansas Court of Appeals, after it was revealed that he was behind an online pseudonym linked to racist, homophobic, and sexist comments. However, despite the moral turpitude Judge Maggio demonstrated in committing these acts, it is what he did while still in the judicial race that lands him prime real estate on our blog today.

 

When Judge Maggio was running for reelection, he received at least $10,000 in contributions that were linked to a corporate chain of nursing homes owned by Michael Morton. Just a few days later, Judge Maggio issued a ruling that lowered a damages award against Morton’s company from $5.2 million to $1 million. No wonder the public thinks justice is for sale.

 

Even if the legal reasoning was sound, there were no errors, and Judge Maggio’s actions were otherwise beyond reproach, his ruling came literally days after receiving the campaign contribution. Regardless of the reality, it certainly “appears” as if Morton was able to spend $10,000 in return for a ruling that saved him over $4 million. Often, this appearance of impropriety is nearly as damaging to the public’s confidence in the courts as actual impropriety. Judicial

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decision-making should not appear to be a business transaction.

 

Here in Pennsylvania, we too select our judges through expensive, partisan judicial elections. So the same scenario that just occurred in Arkansas could easily arise in Pennsylvania. But why should we let it come to that? If we got rid of judicial elections and selected our judges based on merit, we wouldn’t have to worry about the spectre of campaign contributions influencing judicial decisions. Elections including those for judicial office, are won and lost based solely on the financial wherewithal of the campaign. Merit selection takes money out of the equation and replaces it with an in-depth review of the qualifications and experience of the prospective judge.

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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 24 2014

How Does A Judicial Candidate Get Votes?

Typically, politicians get votes by promising to do something. Legislators might promise to vote for or against a pending bill, while executives might promise to create new jobs, or make the state more business friendly. However, as North Carolina Supreme Court Justice, Robin Hudson, accurately points out, judges aren’t allowed to make promises. With North Carolina’s primary elections, just seven weeks away, judicial candidates have been hard at work struggling to raise money and win votes.

 

Herein lies one of the problems with judicial elections. When we ask a judicial candidate to campaign in order to become judge, we’re asking that candidate to demonstrate skills that are foreign to the practice and profession of being a judge. Judges don’t represent constituents; instead they administer justice on behalf of their county, state, or nation by deciding cases based on the facts and the law. Although recent changes to the law now allow judicial candidates to express their personal opinions about controversial issues that may come before them, they are still strictly prohibited from promising to rule one way or the other. What’s the point of asking judicial candidates to get their messages out, when the messages are all the same? Practically speaking, all judges can campaign on is their years of experience and their promise to be fair and impartial, so this isn’t really a selling point, it’s the bare minimum.

 

Judicial candidates also must raise a significant amount of money in order to be competitive in a judicial election. So fundraising is another issue these candidates are dealing with, as to defend against attack ads, they’ve got to spend a significant amount of time fundraising. This is especially difficult for incumbent candidates like North Carolina Supreme Court Justice Cherie Beasley, who says she’s on the road four to five days a week, on top of her duties as a Supreme Court Justice.

 

Notably, North Carolina’s judicial elections are nonpartisan, so at least judicial candidates there can remain somewhat ideological independent. This is not the case with Pennsylvania.

 

In Pennsylvania, judicial candidates have the enviable task of convincing voters that they are the fairest, most impartial, most experienced candidates on the ballot. These candidates must do this while also running under the banner of a political party, and raising money from lawyers, law firms and special interest groups that often appear before the court.

 

Pennsylvanians deserve better.

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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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Mar 03 2014

New Pennsylvania Code of Judicial Conduct Rule Bars Judges From Hearing Major Donors’ Cases

Published by under Judges

In January, the Pennsylvania Supreme Court announced the adoption of a revised Code of Judicial Conduct which will go into effect July of this year. One major area affected by the revised rules revolves around campaign contributions to judicial candidates. Under

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the new rules of judicial conduct, judges will have to recuse or disqualify themselves from hearing cases involving parties whose campaign contributions “would raise a reasonable concern” about a judge’s ability to be fair and impartial.

Unlike some states which have enacted fixed monetary limits, the Pennsylvania Code’s rule on campaign contributions is far more subjective. Because the new code does not explicitly define what a “reasonable concern” is, it would be left to the discretion of the judge to make his/her own interpretation based on the facts and the parties involved. “Ultimately, each judge will have to weigh the donations and the timing of those donations when considering recusal,” said Northampton County President Judge Stephen Baratta. Pennsylvania Chief Justice Ronald Castille believes that in adopting the “reasonable concern” standard, it ensures even application by judges across the entire state.

WIth judicial candidates now running campaigns that generate contributions in the millions of dollars, public perception has been a significant issue, not just in Pennsylvania but nationwide. A 2013 poll by the Brennan Center and Justice at Stake found that “the public is skeptical of allowing campaign contributions in judicial contests. Nearly 90 percent of voters across the country think campaign donations have at leas some influence on judges’ decisions and more than nine out of ten people said judges should recuse themselves when one party in the case has donated directly or indirectly to a judge’s campaign.”

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Feb 27 2014

Justice for Sale

Published by under Merit Selection

The Wisconsin Supreme Court is currently hearing arguments regarding a probe into whether or not Republican candidates “coordinated” with special interest group donors during the 2011 and 2012 recall elections.

Two of the groups being investigated,  Wisconsin Club for Growth and Citizens for a Strong America, are large donors to several of the Justice’s campaigns. In 2011 Justice Prosser received over $1 million in campaign donations from the two groups, dwarfing his own $700,000 personal contribution. The two organizations also helped elect four other Justices to the Supreme Court. Under Wisconsin law, the Justices are not mandated to recuse themselves from cases involving their own donors. Additionally, the secretive nature of the John Doe case means that we may not immediately know how the judges rule in the case.

So, what’s the big deal? What is happening in Wisconsin is just another example of money corrupting the judicial selection process. Currently judicial elections depend upon financial contribution from donors, including lawyers, law firms and interests that have business before the court, to have any chance at being elected. This is not to say that judges rule in line with the wishes of their donors, but there is a problem of appearances at hand. When the public sees a judge presiding over a case involving a campaign donor, questions arise over the objectivity of the judges’ decisions. The reputation of fairness and impartiality is paramount to the success of the judicial system. Cases like the one in Wisconsin further reduce the public’s trust in the judicial system and ultimately undermine the Judiciary’s reputation.

Merit selection eliminates most of the money in the judicial election process. Through merit selection, judges are selected based on their credentials, not the size of their war chest. When a case is brought before a judge, the law and the facts of the case should determine the outcome, not how much one party donated to the judge’s campaign. Pennsylvania lawmakers should move forward on the proposals before them to implement merit selection for statewide judges. When justice is for sale, no one wins.

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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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