Mar 26 2015

In Response to Growing Influence of Money in Judicial Elections, Former Alabama Chief Justice Supports Merit Selection

This year, the U.S. Supreme Court is scheduled to decide whether state ethics rules can prohibit judicial candidates from personally soliciting campaign contributions. The case, Williams-Yulee v. Florida Bar, could have major implications in some of the 33 states, like Pennsylvania, which have this prohibition in place. A ruling against the Florida Bar would effectively force judicial candidates around the country deeper into the world of political fundraising. Involving judges more deeply in campaign fund solicitation will likely further exacerbate issues of public trust in impartial, independent courts. This case should raise alarm: Should judges act as ordinary politicians soliciting campaign funds? Sue Bell Cobb, former Chief Justice of the Alabama Supreme Court, doesn’t think so.

In a recent Politico article, Justice Cobb, expressed her embarrassment at the idea that donors feel compelled to contribute to judicial campaigns in order to be served. According to Justice Cobb, “Judges are meant to be impartial. They’re supposed to apply the settled law against facts and evidence of the case before their court.” However, in a world where campaign dollars flow more and more freely, partisan elected courts tend to reflect more of the interests of whatever side has more money to spend. Further, partisan judicial elections focus more attention on the personal views of judicial candidates than, more importantly, how fairly they will uphold the law. These perceptions weigh heavily on the public trust of the courts and highlight the need for an alternative to judicial elections.

Justice Cobb advocates for the simple premise of fairness when considering judicial reform. To achieve fairness, she highlights merit selection as an attractive alternative to partisan elections. Merit selection removes the specter of campaign contributions from the courts and its ugly and embarrassing consequences to public trust and the judges themselves. Further, merit selection allows for the screening and evaluation of judicial candidates based solely on their qualifications while maintaining public accountability through a nonpartisan retention vote.

In Pennsylvania, with several high profile judicial elections on the horizon in 2015, the time is now to move forward with merit selection. The increasingly partisan climate surrounding judicial elections around the country, inflow of outside money, and potential neutering of ethics rules against judicial candidates soliciting campaign funds should raise alarm and needs to be addressed now. The best way to do this is to forego partisan elections altogether and adopt merit selection.

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Mar 23 2015

Elect Judges Based On Merit, Not Chance

An editorial in today’s Philadelphia Daily News highlights the judicial elections “crapshoot” in Pennsylvania, where judges are often elected based on nothing other than their luck in a lottery for ballot position.

The importance of ballot position on winning elections is well documented, especially in judicial races, where voters don’t have a lot of information about the candidates.  The University of Virginia’s Center for Politics compiled a review of academic studies on the effect of ballot placement on voter choices.  The evidence is overwhelming: “voters who do not have well defined choices prior to voting appear to latch onto the first name on the ballot for each office.”

And this effect gets stronger as the number of candidates gets larger.  So you can imagine the delight of Philadelphia Court of Common Pleas candidate Scott DiClaudio when he was randomly chosen to be listed first on the ballot (out of 59 Democratic candidates) on the May 19th primary ballot.

There are 12 seats on the Philadelphia Court of Common Pleas bench up for election this fall, and, as the Daily News points out, based on his ballot position alone, “[DiClaudio] might as well go get measured for a black robe.”  This, despite the fact that DiClaudio was temporarily suspended from law practice and then placed on probation for a year for his mishandling of a client’s appeal.

The other interesting finding in the academic literature is that ballot position matters more in lower information elections.  So, for example, wildcards like the “coffee can that can make or break candidates” matter less in high-visibility races like Mayor or President, where voters make efforts to learn about the candidates.  But when candidates are unknown, or races are less publicized or appear at the end of the ballot (when another well documented phenomenon, ballot fatigue, kicks in), ballot position can mean the difference between election and defeat.

Hogtied by a lack of meaningful information, voters turn to political shorthand.  They consider, sometimes unconsciously, factors such as ballot position, name recognition, or political party, rather than respect for and knowledge of the law, ethical conduct, judicial temperament, or other relevant attributes.

Last week, former Philadelphia Traffic Court Judge Willie Singletary was sentenced in federal court to 20 months in prison for perjury and making false statements to FBI agents.  The list of judicial scandals in Pennsylvania is, regrettably, getting longer with each passing year.  It is time for Pennsylvania to move to a system of selecting judges based on merit.  As the Daily News notes, it is one area in which former Pennsylvania Governors like Democrat Ed Rendell and Republicans Tom Ridge and Dick Thornburgh agree on.  The fate of our judicial system should not be left to chance.

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Mar 12 2015

Former Montana Supreme Court Justice Joins Growing Calls for Merit Selection

Retired Montana Supreme Court Justice James C. Nelson has joined the growing call for an end to judicial elections. In the February edition of Montana Lawyer, retired Montana Supreme Court Justice James C. Nelson cites Citizen’s United and its related injection of outside funding into state judicial elections as having,“…poisoned campaigns and elections across the nation.” During the last judicial election cycle in Montana over $1.63 million was spent on a single Supreme Court election, where the judicial candidates raised only $250,000 of the total spent on the campaign, a jarring imbalance that threatens the public trust in impartial courts.

Prior to the recent Montana election, Justice Nelson had been a proponent of judicial elections. Experiencing the climate fostered by outside spending, Justice Nelson remarked that, “No Montanan should be forced to appear in a court where the wheels of justice have been liberally greased with money and obligation.”

In light of ever increasing outside spending on judicial elections and the need to protect Montanans’ rights to, “… fair, impartial, and independent judges and justices…” Justice Nelson urges his state to end the current system of partisan elections and, “… amend the Montana Constitution, by way of citizen’s initiative, to provide for the selection of jurists through a purely merit-based system.” An editorial in support of merit selection from the Billings Gazette adds that with three of seven Montana Supreme Court seats open in 2016, reform is urgently needed.

Pennsylvania finds itself at a similar critical juncture in the opportunity for reform. Recently, a group of retired Pennsylvanian judges advocated in an Allentown Morning Call article for merit selection of appellate judges in Pennsylvania, anticipating huge amounts of spending in this year’s elections to fill three Pennsylvania Supreme Court vacancies.

It is time to end the system of expensive, partisan elections in Pennsylvania that forces judges to campaign, fundraise, appear in TV ads and send out robo calls to voters. Merit selection takes money out of the judicial selection process and focuses on qualifications while maintaining accountability and bolstering public trust in fair, impartial, and independent judges.

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Feb 25 2015

Cast your Vote in Favor of Merit Selection on the Poll

The website is hosting a poll allowing readers to choose whether they think Pennsylvania judges should be elected or appointed.

The poll comes in the wake of several controversies involving elected judges in Pennsylvania, including those on the Supreme Court.

This week, comedian John Oliver gave his hilarious take on the issue on his TV show, Last Week Tonight, even mentioning the bribery scandal of former Philadelphia traffic court judge Willie Singletary.

Pennsylvania is one of just six states that elect all of their judges through partisan political elections.  Judges should not be forced into fundraising roles and political party labels.  Running in an election encourages these judges to act like politicians rather than independent, arbiters of the law.  Judges should be treated differently than politicians because the judicial branch is different than the others.

Pennsylvanians for Modern Courts advocates for merit selection of appellate judges.  A 2010 scientific poll of likely voters, conducted by Public Opinion Strategies, showed that 62% of Pennsylvanians were in favor of replacing the current appellate judicial election system with merit selection.

To cast your vote for the merit selection of judges in the PoliticsPA poll, follow this link.

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Feb 24 2015

John Oliver Explains Why Judicial Elections are Harmful for American Democracy

On this week’s episode of Last Week Tonight, John Oliver took on the topic of judicial elections, referring to them as a “horrible spectacle.” John Oliver began his segment with a discussion of Alabama’s Chief Justice Roy Moore, who has ordered state judges to ignore a federal ruling that would allow same-sex couples to marry. Justice Moore was elected to his position, as Oliver points out.

39 states in the U.S. hold judicial elections. No other country holds judicial elections on the same scale as the United States, except Bolivia, as Oliver points out. Most judges in the U.S. run unopposed.

One of the major problems with judicial elections that Oliver discusses involves advertising. Studies have shown that judges are likely to rule more harshly against criminal defendants to protect themselves from future judicial attack ads that may suggest they are “too soft on crime.” The studies show judges change their behavior in election years and are tougher on crime. Oliver says, “That’s terrifying. You shouldn’t be sitting in a prison going, ‘How did you get 15 months for public urination?’ ‘Well, you know, it was October in an election year. I should have known what I was getting into.’”

Another problem John Oliver takes issue with is lawyers donating to judicial campaigns, which he describes as “the definition of a conflict of interest.” Judges also often accept money from business and special interest groups, which can lead to them voting in favor of those groups in the future (on the Ohio Supreme Court, judges on average vote in favor of those who contribute to them 70% of the time, with one judge voting in favor of his contributors 91% of the time). Oliver is truly disturbed by what he describes as the “shaking down” of lawyers for campaign donations, and the increasing presence of PACs and SuperPACs in judicial elections following the Citizens’ United decision. The result is extremely political elections in what should be a fair and impartial system.

Oliver also took on Philadelphia Traffic Court Judge Willie Singletary in his segment. Oliver showed a 2007 video of Singletary in which he is shown asking a crowd to donate to his campaign in order for them to receive favorable treatment in traffic court. Oliver points out that Singletary was ultimately removed from the bench for showing nude photos of himself to a Traffic Court cashier, calling it a “2012 judicial penis debacle.” Singletary was convicted of lying to the FBI in the recent case regarding Philadelphia Traffic Court Judges accepting bribes in exchange for special treatment in traffic court.

Oliver correctly points out many of the major issues with judicial elections in this country. These issues are particularly relevant in Pennsylvania, which has entirely partisan judicial elections and has encountered numerous judicial scandals recently. Oliver ends his clip by saying, “Faith in a strong, independent judiciary is essential in civilized society. If we’re going to keep electing judges, we may have to alter our idea of what justice is.” He continues, “In fact, at the very least to be a bit more representative, we should tweak the blindfolded lady holding scales, to put a tip jar in her hand and a give her a winking emoji for a face.”

Watch the video below:

Also check out the article.

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Feb 18 2015

Retired Pennsylvania Judges Call for Merit Selection

recent article published in the Allentown Morning Call and authored by former Lehigh County Judge Maxwell E. Davison is calling for merit selection of appellate judges. Judge Davison is joined in his opinion by six other former Pennsylvania judges. Citing numerous reasons for the change, including the recent pornographic email scandal involving former PA Supreme Court Justice Seamus McCaffery, Judge Davison argues that merit selection of appellate judges in Pennsylvania is “long overdue.” We agree.

In the 2009 Pennsylvania Supreme Court race, the two candidates who ran for the bench raised nearly $5 million in support of their campaigns. Judge Davison’s article points out that with three open seats on the Court this year, the money raised and spent is likely to be staggering. When the winner of a seat on Pennsylvania’s highest court is essentially determined by who is able to shell out the most money, justice is not served.

Judge Davison’s article points out that merit selection focuses on qualifications and talent, as opposed to our current system, in which judges are often elected based on arbitrary factors such as their ability to fundraise or their ballot position. Merit selection “removes politics from the courtroom.” Since judges are supposed to be neutral arbiters of the law, most of us can probably agree that the courtroom is no place for politics.

Judge Davison discusses the merit selection system, which would consist of a nominating commission whose job would be to screen, evaluate, and recommend candidates for service. The commission would be comprised of men and women from diverse backgrounds across the state (the article says the commission would contain members of the legislature, which we do not advocate for at PMC). The governor would then nominate a candidate from the list, and the candidate would then be confirmed by the senate. The public would be able to vote for judges in retention elections after a number of years. Judge Davison also discusses how each candidate would be required to possess certain minimum qualifications, such as having at least ten years of legal experience (PA currently has no experience requirements for those who wish to run for judge).

Pennsylvania is one of six states that chooses all its judges in entirely partisan judicial elections. The article recognizes, as does PMC, that no system is perfect. But with numerous courtroom scandals that have recently occurred in Pennsylvania, and money spent on elections ever-increasing, there has to be a better way than partisan elections. Who would better understand the problems with our current system than former judges who participated in it? Pennsylvania citizens should not feel as though justice can be purchased through generous campaign donations. Judges should not engage in campaigning and fundraising. It is time that Pennsylvania listens to Judge Davison and other former PA judges and implements a merit selection system for choosing appellate judges.

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Feb 18 2015

Low voter information undermines judicial elections 

Judicial elections are traditionally “low-information” ballot races, but a recent University of Akron poll shows that there are consequences to this state of affairs.

Half of all Ohioans polled said they vote less frequently for judges when compared with other offices on the ballot.  Of those, 63 percent said the reason they don’t always vote for judges is because they don’t know enough about the candidates.

When low information yields an even lower turnout, the justice system suffers.  This drop off of voters is especially concerning given the high stakes of judicial decisions.  Few individuals in society wield as much power as those on the bench.  The judge’s gavel is symbolic shorthand for justice and fairness under the law for a reason.  Those who were polled agreed:  76 percent agreed that courts are the “key protector of individual liberty, safety, and property.”  Yet 56 percent said that some of those elected to the bench are unqualified.

In a 2010 poll of Pennsylvania voters, 73 percent responded that they do not believe that the most qualified candidates win elections, and 76 percent believe campaign contributions influence judicial decision-making.

The perception (and all too often, reality) of unqualified justices erodes faith in our criminal justice system. Victims of crime and civil wrongs should be able to have faith that justice is in the right hands. Defendants should have confidence that they will not be unjustly punished.

When judges are selected based on name recognition, fundraising, ballot position, or political party rather than on qualifications and merit, it chips away at the dignity of the judiciary for the many judges that deserve their seat on the bench.

63 percent of Ohioans would consider an alternative to the current judicial selection process.  50 percent of Ohio voters think that the electoral system should be done away with in favor of a merit-based appointment process with retention elections in subsequent years.  In Pennsylvania, 93 percent of voters want the opportunity to reconsider how we select our judges.

An improvement in the judicial selection process will lead to much-needed gains in public confidence in the judiciary.

In Pennsylvania, recent scandals have tarnished the reputation of the state courts.  The problems familiar to Pennsylvanians are a byproduct of an electoral system that values campaigning and fundraising over the fundamental qualities of fairness, honesty, sound judgment, and impartiality that a judge should have.

An amendment to the Pennsylvania Constitution instituting the selection of justices based on merit, rather than partisan politics, will go a long way towards restoring the reputation of the courts.

Pennsylvanians deserve it.


For the full poll results from the University of Akron’s Ray C. Bliss Institute of Applied Politics, click here.

For more information, see here and here.


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Jan 21 2015

Judicial Elections in a Post-Citizens United Era

Recent studies have shown that Citizens United likely has had a tremendous impact on judicial elections. Since the US Supreme Court’s decision in 2010, judicial campaign spending has increased at an alarming rate. In the 2011-2012 election cycle, $24.1 million was spent on state court races, which was an increase in more than $11 million since the 2007-2008 cycle. Much of the spending comes from outside, special interest donors. Smaller judicial races have become particularly attractive for these donors, since judges have the power to influence ideological issues such as abortion or business regulations.

What does this increase in spending from outside groups mean? A report issued by the American Constitution Society found that ads that are paid for by outside groups are generally negative, and that these negative ads can actually have an effect on judges’ rulings. This is largely true for criminal cases. Many of the ads play on television and focus on judges being “too soft on crime,” and use examples such as judges giving lenient sentences to child molesters or murderers. The American Constitution Society’s study found that the increase in negative ads on television correlates with a seven percent decrease in judges’ voting in favor of criminal defendants. Judges are also likely to issue harsher sentences, according to an analysis published by The Review of Economics and Statistics. The study showed that Washington State judges who were soon facing re-election issued sentences to criminal defendants that were 10% longer at the end of their judicial cycle, as opposed to at the beginning.

The increased spending has been shown to affect cases outside the criminal arena as well. Studies have shown that when lawyers or business interests contribute to a judge’s campaign, that judge is more likely to issue them favorable decisions in the future. In addition, one study found that state supreme court justices who receive at least 25% of their campaign contributions from business interests, later ruled in favor of business interests in approximately 62% of their cases.

All that being said, these problems could be avoided entirely if rather than having judicial elections, we moved to a merit selection system. Pennsylvania is one of six states that elect all our judges partisan judicial elections. With the issues that judicial elections present, and studies suggesting that judicial campaigning can have a real impact on judges’ decisions, what better time for change than now? Five years after Citizens United, the results are in. Judicial elections are not working. It is time to move for merit selection in Pennsylvania.

For more information, see here, here, here, and here.

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Dec 04 2014

As Judicial Campaign Expenditures Increase, Faith in the System Decreases

Published by under Merit Selection

As judicial campaign contributions and expenditures continue to rise in the wake of the Citizens United decision, more commentators have begun to question just how “fair,” “impartial,” and “independent” our judiciary is. This past election, campaign spending for judicial elections in several states reached record highs. In states such as North Carolina, spending by outside special interest groups was more than double its previous record ($5.2 million spent). The overwhelming majority of outside spending was independent expenditures that are not subject to disclosure requirements, and most contributions came from out of state conservative groups.

No wonder people think justice is for sale. Several studies have shown a troubling connection between ad spending and “tough-on-crime jurisprudence.” A study conducted by the American Constitution Society found that increased TV ads aired during state Supreme Court elections correlated with justices being less likely to decide in favor of criminal defendants. Additionally, a study conducted in 2004 by Gregory Huber and Sanford Gordon of more than 20,000 criminal cases over a decade in Pennsylvania, found that judges implemented higher sentences against defendants during election years. The study alarmingly discovered that approximately 2,000 additional years of incarceration could indirectly be ascribed to judicial elections.

In Pennsylvania, voters will elect three Supreme Court justices in 2015. Since it seems unlikely that there will be restrictions on campaign spending any time soon, perhaps the best way to solve this issue is to steer away from judicial elections and toward merit selection. Pennsylvania is one of only six states that elect all our judges in partisan elections. Judges should be making decisions based on an impartial assessment of the law and the facts in front of them, not based on how their ruling may be portrayed during the next election cycle. It’s time for a change.

For more information, see here.

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Dec 02 2014

2014 Judicial Election Recap

Published by under Judicial Elections

On Tuesday, November 4th, Supreme Court justices in 22 states were on the ballot, with retention elections in 14 states.  In many states, the judicial elections were expensive, negative, and bitterly partisan.

Perhaps the clearest trend to emerge from the 2014 elections is the increasing role of money in judicial elections.  For television ads alone, $13.8 million was spent this year on state Supreme Court races.  59% of this money came from outside special interest groups or a political party.

In Illinois, a retention election turned into a “brawl between special interests and partisans.

In Kansas, TV ads attacked two incumbent Supreme Court justices as being “soft on crime” and “liberal” for their votes in a case vacating a death penalty conviction, even though the court’s ruling was a bipartisan, 6-1 vote.

North Carolina just had their first judicial election without a public financing system.  Not surprisingly, at $5.2 million spent, it was by far the most expensive Supreme Court election in the state’s history.

In Montana, likewise, record TV ad spending led to a race fraught by negativity.

In one Montana Supreme Court race, 87% of TV ad spending came from special interest groups outside of the state.

Retention elections should be about the qualifications of the judge to continue to serve on the bench. They should not serve as a proxy for a referendum on an unpopular ruling.  Nor should they be a way for outside interests to drown out the interests of voters and their crucial decisions on whether a judge is qualified enough to rule fairly and serve ethically.

For candidates and incumbent judges facing retention, unbridled spending on judicial races creates pressures to avoid political attack or win favor of those with the money and connections necessary to get them elected.  These are perverse incentives.  A November 2nd New York Times editorial highlighted the issue, calling money and judges a “bad mix.”   A 2013 American Constitution Society study found “a significant relationship between business groups contributions to state Supreme Court justices and the voting of these justices in cases involving business matters.”

Judges should be insulated from the political headaches of the other branches of government.  Most judges don’t want to campaign — they would much rather focus on the cases before them.  But with increasing spending by outside groups seeking to change the political makeup of courts around the country, judges are forced into the fundraising, speech-giving, coalition-building roles usually ascribed to legislators and executives.

The largest takeaway from the 2014 elections may be this: voters don’t want to treat judges like politicians.  In each and every one of the races this month in which outside interests attempted to unseat incumbent judges by pressuring them politically, the incumbent kept his or her seat.

The message of 2014 is that money and politics don’t belong in the judicial arena.  In the future, let’s make sure that judges in Pennsylvania and elsewhere get their jobs based on qualifications, not politics.  And in retention elections, we as voters can and should continue to see past the transparent efforts of outside groups to oust qualified judges as retribution for unpopular opinions.  After all, the best judges are those willing to forgo any considerations of how popular a legal decision may be.  Rather, they focus on what is right by the Constitution and the laws of the land.  That is the standard that citizens should keep in mind for our judiciary.

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