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Aug 21 2014

19 Candidates For the Picking

Published by under Merit Selection

Could a reasonable person expect the average voter to perform in-depth and efficient background checks and research on 19 candidates for the election of one seat on the bench? North Carolina seems to place that level of optimistic confidence in their voters.

After Judge John Martin retired on August 1, 2014 from North Carolina’sSuperior Court,  19 judicial candidates stepped up in hopes to fill his vacant seat. Because Judge Martin retired after the primary elections, but before the general election, all candidates for his seat will be listed on the November ballot.  The person who is elected will have an 8 year term with the ability to alter or shape the climate and conditions of the North Carolinian courtroom.

Choosing judges is an important decision. Judges affect all aspects of our lives, from where we live to where we work to who we marry.  It’s important that the most qualified, fair and impartial judges sit on the bench. But by electing judges, however, we are all too familiar with the fact that the average voter will not research all the candidates in the judicial election in hopes to find the best fit for the job. And who would? Instead, judges are elected based on at things like name recognition, the ethnic or geographic background of a candidate, or even where a candidate is listed on the ballot. This type of chance should be concerning, as it does not ensure that a well-qualified and impartial person sits on the bench.

Although this is an extreme example, the North Carolina race for chief judge of the Superior Court clearly demonstrates the problems with judicial elections. Pennsylvania should NOT follow suit; as we should all know by now that repeating an action over again and again expecting a different result is the wrong path. But there are other options. Merit selection is the right solution to break this cycle. Merit selection ensures that only the most qualified, fair and impartial judges reach the bench.

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Aug 06 2014

Need for Less Chance and More Focus on Qualifications in Judicial Selection

Published by under Merit Selection

On July 10, 2014, in the wake of a rare tied election, under the New Mexican constitution, the flip of a fifty cent piece decided that Kenneth Howard Jr. was declared the new magistrate judge of McKinley County.

While not as arbitrary as a coin flip, judges who are elected are often chosen based on random factors. Name recognition, apparent gender or ethnic background, where the judicial candidate is from, or even where the candidate is listed on the ballot are all major factors in deciding who sits on the bench. Do we want to leave judicial selection up to chance? Isn’t it better to use a system that takes the time and effort to seek and appoint the most qualified fair and impartial judges? These are not trick questions, yet Harrisburg has not delivered an answer.

Merit selection is a better way to choose judges because the process focuses on qualifications, not random and irrelevant factors. The merit based system operates under informed decisions, including testimony by sworn officials and various in depth screenings to determine the most qualified candidates. There is no haphazard game of chance for the public in the merit system. Plus, merit selection affords the public opportunities for more meaningful input through feedback during the nominating process and retention elections.

Pennsylvania’s justice system would benefit from a change to merit selection. The merit system is the best way to ensure a qualified, fair, and impartial judicial system.

Let’s not let the integrity of Pennsylvania’s justice system continue to rely on the whims of chance. It is time for merit selection to become a reality in Pennsylvania.


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Aug 05 2014

Expensive Judicial Elections are an Assault on Our Courts

Published by under Judicial Elections

Tennessee courts are specifically tasked with deciding “on the constitutionality of legislation passed by the General Assembly” and to “consider the legality of administrative policies and regulations.”  Why then, are so many politically motivated groups spending so much campaign cash prior to the upcoming Tennessee Supreme Court retention elections?

The answer seems to be related to the Supreme Court justices appointing an attorney general who did not join other attorney generals in a lawsuit opposing the Affordable Care Act. For the record, once the Tennessee Supreme Court appoints an Attorney General, the Attorney General is completely independent and does not answer to the Court.

Regardless of the underlying motivations, the amount of money spent in an attempt to influence the retention elections is emblematic of recent trends of increasingly political and expensive judicial elections. According to Justice at Stake, the Tennessee Supreme Court retention election has set a record by exceeding $500,000 in television advertisement spending.  Tennessee Forum, a group that opposes retaining the three justices up for election, has contributed $245,000.  Likewise, Keep Tennessee Courts Fair, a group that supports retaining the three justices, has given a considerable contribution amounting to $210,000.

Industrialists Charles and David Koch have even thrown their hats in the ring by having their organization, Americans for Prosperity, contribute significant amounts to the campaign to unseat the three justices.

Judges should be chosen (and retained) based on their qualifications including legal experience, judicial temperament, and quality of their decisions. Choosing judges (or choosing whether to retain judges) through a political process for a nonpartisan job is nonsensical.

Pennsylvania needs to start learning from the examples of states like Tennessee. We need to protect our courts from special interests and politicians that see them as just another tool in the political arsenal. It’s time for Harrisburg to stand up to entrenched special interests and have a serious discussion about commonsense reforms like merit selection.

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Jul 24 2014

Justice Sandra Day O’Connor Creates Judicial Selection Plan

Published by under Merit Selection

Fixing a problem usually consists of seeking out those who are most knowledgeable and familiar with the situation.  Such is the case when former Supreme Court Justice Sandra Day O’Connor and the Institute for the Advancement of the American Legal System collaborated to develop a merit selection plan they hope states will adopt.

This Plan gives a blueprint for states to select judges in the most nonpartisan and fair way and to ensure that judges are the most qualified for the position.  It consists of four parts: a nominating commission, gubernatorial appointment, judicial performance review, and a retention election.

The judicial nominating commission component is intended to be a diverse nonpartisan committee, appointed from a variety of sources, that screens and identifies candidates to forward on to the governor.  This process makes sense because the nominating commission will be able to thoroughly evaluate candidates and select the most qualified.  In contrast, voters in judicial elections often choose who to vote for based on irrelevant factors, such as name recognition, position on the ballot, and perceived gender or race. The nominating commission can focus solely on qualifications such as legal experience and knowledge, judicial temperament, and community involvement.

The nominating commission then sends a short list of candidates to the governor for appointment. The Plan suggests limiting both the number of candidates on the list and the time for the governor to act. While the appointment is inevitably political, gubernatorial appointment is one place where the public can express their opinions about the candidates. Further, since all the candidates on the short list are extremely qualified, it makes little difference which candidate is selected.

The judicial performance review component allows for an evaluation of judges to be sent to the public.  The committee overseeing this aspect would be compromised of selected individuals made by appointing authorities.  This is important both for the judges to self-evaluate and constantly strive to improve their performance as well as for the public to have all relevant information when choosing whether or not to retain the judge.

Lastly, the plan proposes a retention election.  This crucial step allows for the people’s voice to be heard.  The public will decide whether the judge has performed his or her duties adequately.  Here, voters will elect the incumbent to a further term or vote against them returning to the bench. The public has a right to hold their judges accountable for their actions on and off the bench.

Merit selection balances the need to ensure that judges are qualified, fair and impartial with the public’s right to hold judges accountable.  Judicial elections are a political and partisan process for a nonpolitical, nonpartisan job.

If anyone would know the importance of judicial impartiality, it would certainly be a former Supreme Court justice.  Justice O’Connor recognizes this importance, it is now time for Pennsylvania legislators to follow suit.

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Jul 10 2014

While not Perfect, Pennsylvania Could Learn from Maryland

Published by under Merit Selection

Fundraising, gaining political support, and campaigning.  These tasks, normally reserved for politicians running for political office, also exist within the non-political realm of the judiciary in the form of judicial elections.


Pennsylvania’s system of judicial elections creates a political atmosphere within the judicial branch that should not exist.  Instead of focusing squarely on the rule of law, judges have to focus on tasks usually left to the executive and legislative branches.


Some opponents of judicial selection reform in Pennsylvania argue that because we have not yet seen any catastrophic results from electing all our judges, there is no reason to reform the system. However, as recent developments in Maryland demonstrate, there is no guarantee that respectful, informative and clean judicial elections will continue.


According to an article in the Washington Post, this year’s trial court elections in Maryland have become unexpectedly contentious due to concerns about the conduct and connections of one of the judicial candidates. In fact, the campaign has become so political, some reformers are pushing to change the way judges are selected.


In Maryland, appellate court judges are selected through a merit selection process while trial court judges are elected. Reformers are using this election cycle as an example as to why all Maryland judges should be selected through merit selection.


Judicial selection should be a process of finding the most qualified, fair and impartial judges to sit on the bench. It should not rely on fundraising skills, political connections, or ability to successfully campaign.  The best fundraiser or campaigner is not necessarily the best judge.


Maryland is light years ahead of Pennsylvania in reforming their judicial selection process, but there is still room to further improve it.


It is time for Pennsylvania to follow suit and rid itself of judicial elections so it too can have the best decision makers on the bench.

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Jun 27 2014

In the Right Spotlight

Can you name at least two candidates in any of the recent judicial elections in your district or state? Do you know something meaningful about the platform they ran on? Even if you can answer the first question, the second question might leave you stumped.

Public offices such as governor, representative and senator get more than their share of the media’s attention. When it comes to meaningful coverage of judicial elections, however, the public is often left in the dark. In the few cases when judicial elections gain wide spread media attention, it is usually for the wrong reasons, as was the case for the recent Supreme Court race in North Carolina. So then, the public is either not fully aware of judicial candidates or are left to make their decisions on television ads funded by partisan interest groups. In both cases, the public suffers.

Pennsylvania is currently one of only six states that elect all their judges in partisan elections. With the growing involvement of interest groups and their money, judicial campaigns are beginning to look more and more like political campaigns. Issues relevant to the bench, such as the candidate’s experience and track record of ruling by the law, are replaced by negative attacks on opponents and the political affiliation of candidates.

Compared to political leaders, judges are the public officials that citizens are most likely to come in direct contact with in their everyday lives. Judges play the important role of upholding the rule of law and making sure that justice is fairly and equally enacted amongst all. With such an important responsibility placed upon judges, it becomes crucial that there be an effective and reliable system in place to ensure that the best-qualified candidates are entrusted with carrying out the duties of the bench. This is where merit selection comes in.

Rather than continue the politicization of judicial elections, merit selection allows for candidates to be considered for and appointed to judgeships based on their qualifications and proven track record. Through nominating commissions that thoroughly vet candidates and retention elections, merit selection provides the public with opportunities for engaged participation in choosing judges, rather than relying on thirty second attack ads.

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Jun 05 2014

Pennsylvania House of Representatives’ Judiciary Committee to Consider House Bill 1848

Published by under Merit Selection

The Bucks County Herald recently featured an op-ed column written by Charles Meredith encouraging members of the House Judiciary Committee to report out House Bill 1848 relating to merit selection of statewide judges. The Committee is scheduled to consider the bill early next week.

Now, all Pennsylvania judges are elected in expensive, partisan elections. House Bill 1848 would create a bi-partisan commission to screen and evaluate potential candidates for Pennsylvania’s Supreme, Superior, and Commonwealth Courts. Local judges would still be elected.

The merit selection process of House Bill 1848 involves four steps. A bi-partisan citizens nominating commission made up of lawyers and non-lawyers would evaluate judicial applicants and recommend the most qualified to the Governor. Next, the governor would nominate an individual from the short list created by the commission to be sent before the Senate for confirmation. Lastly, after the individual is confirmed as a judge, she or he can sit for a shortened term of four years before going before the voters in a nonpartisan retention election for a 10 year term, and every ten years following.

One glaring reason Pennsylvania should switch to merit selection is to maintain the role of a judge as an objective decision-maker. Judges are not, and should not be politicians. Judges are inherently different from the other elected officials. Using discretion to come to a well-reasoned objective decision is a judge’s main role, while other elected officials represent constituents and fight for their needs and desires. In doing so, these elected officials need to campaign and raise money to ensure they are elected and re-elected. Judges do not represent anyone. Instead, judges make objective decisions based on the rule of law. When the public sees judges campaigning and fundraising to win a seat on the bench, it takes away from their view of the judge as an objective decision-maker, and instead gives the impression that judges are the same as other politicians.

House Bill 1848 should be voted out of Committee because it represents a bi-partisan, commonsense effort to get the most qualified candidates to the bench by maintaining a judge’s primary role as decision-maker. It is time Pennsylvanians tell their representatives that judges are not politicians.

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May 29 2014

Political Justice

Across the country, politics is quickly rearing its head in the nation’s courtrooms. Lawmakers are infringing more and more upon the independence of the judiciary. Lawmakers in Oklahoma, Missouri and Kansas have introduced bills that limit the power of the judiciary following unpopular decisions.

This phenomenon is made worse by increases in partisan financial support for judicial elections, which are also threatening the independence of the judiciary. Current judicial elections make it nearly impossible for judicial candidates to run without substantial donations to fund their campaigns. This has allowed partisan and special interest groups to have more influence on judicial elections through their funding of candidates. In North Carolina alone, special interest groups spent more than $1.3 million on the Supreme Court race, with $900,000 contributed from the Republican State Leadership Committee being used in attack adds against incumbent Supreme Court Justice Robin Hudson.

A recent study by Center for American Progress reports that states have failed to update their judicial recusal rules to reflect potential conflict of interests resulting from campaign contributions.

Political pressure coupled with the increasing campaign contributions leaves our judiciaries in precarious situations. Editorials in The Washington Post and The New York Times highlight the growing concern over the loss of judicial independence. The judiciary has long been seen as the branch of government most isolated from the partisan bickering of politics. Judges are expected to rule in accordance with the law, safe from threats of retaliation from lawmakers. It is this separation of powers and the belief in the objectivity of the law, which has made our judicial system what is today. If events like those in Oklahoma, Missouri and Kansas continue, our proud history of an independent judiciary could be at risk.

One way to push back against the pressure of politics and money is to change the way we select our judges. Moving from Pennsylvania’s current system of expensive, partisan judicial elections to the merit selection of judges would curb the influence of money and politics from our courts. Merit selection takes into account the candidate’s ability to uphold the rule of law rather than the candidate’s war chest or political affiliation. In merit selection, a nomination commission of private citizens vets judicial candidates, with the most qualified candidates being recommended to the governor for approval and senate confirmation. Once confirmed, judges will sit for a shortened term before facing voters in a yes/no retention election to determine if they are fulfilling their responsibilities as judges. This helps limit the pressures of politicians and their checkbooks that our judges currently face.

The events in Oklahoma, Missouri and Kansas should serve as a warning that we need to take action to maintain the integrity of our judiciary. Here in Pennsylvania, PMC is currently pushing for legislation to implement judicial merit selection, protecting both the integrity of our judges and our justice system. We need an independent justice system that works for the people––not the politicians–– and merit selection is the best way to achieve that goal.

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May 07 2014

Politicians in Robes?

Great news for state-level Republican judicial candidates throughout the country: they could be seeing a lot more financial support from their party! The Republican State Leadership Committee (RSLC) announced its plans to launch the Judicial Fairness Initiative tasked with providing monetary support for judge candidates with conservative ideology.

Specifically, the Judicial Fairness Initiative plans to help mobilize voters, fund campaigns, and gather resources to help in judicial elections. While Matt Walter, president of RSLC, has not announced a set budget for the program, the group is estimated to spend more than $5 million on judicial campaigns this year alone.

Most recently, the RSLC had gained national attention with its involvement in the North Carolina Supreme Court race. The group contributed over $600,000 to the conservative Justice for All NC PAC. Justice for All NC then went on to release a series of ads against incumbent Justice Robin Hudson suggesting her of siding with ‘child predators’ after her dissenting opinion in a case over electronic monitoring of child molesters.

However, Republicans are not the only ones throwing money behind judicial candidates. Groups and individuals from across the political spectrum, including left-leaning Human Rights Watch, are providing financial support for their favored judicial candidates. Since very few states have laws requiring judges to recuse themselves in cases involving parties that contributed to their election, it presents a public perception of impartiality when judges preside over such cases.

Current judicial elections risk turning the judiciary into another partisan political battleground. When partisan political groups support judges, either financially or through endorsements, the perception of a fair and impartial judiciary is tainted. Judges then risk being seen as ruling in line with their political supporters rather than through the objective interpretation of the law. As Alicia Bannon, of the Brennan Center for Justice at NYU law school accurately states, the politicization of judicial elections risks turning judges into ‘politicians with robes.’ With a judiciary that depends heavily on public trust, judges cannot risk the perception of impropriety.

The most appropriate way to curb the influence of politics from the judiciary is through merit selection. Merit selection depoliticizes judges by removing the pressure on judges to act in accordance to a political ideology in return for campaign donations and support. Instead, merit selection relies on the nomination of qualified judge candidates by a bipartisan citizen committee for gubernatorial approval and Senate confirmation. This process ensures the selection of judges based on their earned credentials, not their political allegiance.

Pennsylvania can avoid the partisan influence of the RSLC and other groups by supporting efforts to move from contested elections of judges to the merit selection of judges. We all deserve a court system we have confidence in to act in accordance with the law, rather than with politics. Let the politicians keep their suits; we prefer our judges in robes.

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Apr 22 2014

Big Money Donors Shaking the Public’s Faith in an Independent Judiciary

Published by under Merit Selection

There is no doubt that when a big money donor exchanges their financial support for a judicial candidate’s political loyalty, “actual bias or the appearance of bias comes into question,” according to Judge David Stewart, retired executive director of the Arkansas Judicial Discipline  and Disability Commission.  Judge Stewart cites the example of the recently formed Americans for Judicial Excellence PAC, whose mission is to elect judges who represent the policy positions taken by the current conservative Republican Party majorities in the Arkansas legislature.  Only after judicial candidates have sworn fealty to the Republican Party’s core principles will they be invited to speak to the PAC and receive their endorsement and hefty monetary contributions.


A judge’s decision-making should be unbiased, based on the law and facts before them, not the political platforms of any party.  By requiring political allegiance in exchange for campaign contributions “not only does the judge become subject to actual impropriety, [but] the appearance of impropriety can be huge.”  Regardless of whether the judge is actually biased, how can the public have any “faith that the judge in question can be trusted to make a decision independent of the influence of money, or his quirky biases heretofore exhibited[?]”  Simply stated, it shakes the public’s faith in the independence of the judiciary.  For that reason alone, judges cannot and should not be subject to the political whims of big money donors.


The grave concerns raised by Judge Stewart are not isolated to Arkansas.  In a post Citizens United v. FEC and McCutcheon v. FEC world, where donors can spend enormous amounts of money to support the “right” judicial candidate, these same problems are lurking just around the corner in any state where judicial elections are held.  States like Pennsylvania, which have partisan judicial election systems, are at the greatest risk of a rising lack of public confidence in an independent judiciary due to campaign contributions.  These expensive and often messy partisan judicial elections shift the focus away from putting the most qualified candidate on the bench, but instead places it on who can be the most effective fundraiser and campaigner.


Merit selection is a commonsense approach to minimizing the negative effects of campaign contributions in judicial selection.  By selecting our judges through merit selection the need to stockpile donations and amass small fortunes from PACs becomes moot.  Instead of a heated campaign, the likes of which we generally expect to find between legislative or executive candidates, merit selection provides for an independent bipartisan citizens committee that evaluates and recommends the most qualified candidates to the governor for nomination.  Through this process, merit selection ensures that the seats on the bench are filled with candidates who are most qualified and not simply those with the biggest wallet.  This helps to restore the public’s confidence in an independent judiciary capable of rendering objective and unbiased decisions, free from the taint of campaign contributions.


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