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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Feb 25 2014

Judges for Sale in North Carolina

Since 2004, more than 80% of judicial candidates in North Carolina have used public financing to fund their campaigns. This program gave a grant to judicial candidates who raised money from small donors and agreed to strict spending limits. However, after nearly a decade on the books, the program was eliminated by North Carolina lawmakers, opening the door for big money to flow into judicial campaigns in the state.


Individuals in North Carolina can now contribute up to $5,000 to a judicial candidate, up from $1,000; and without public financing, judicial candidates will rely heavily on big donors, in order to win elections. According to the national institute on money in state politics, 78% of North Carolina’s supreme court elections were monetarily competitive under public financing, as opposed to only 25% prior to it. With the elimination of this program, judicial seats will go to the best fundraiser, rather than the most qualified candidate, which will only undermine public confidence in the judiciary.


Big money exacerbates the already problem-laden practice of judicial elections. When judges are forced to court big donors in order to be elected, it puts them in a position they are unaccustomed to, and creates the appearance of impropriety. Further, it is difficult for the public to have faith in an impartial judiciary, when lawyers, law firms, and corporate interests are allowed to buy influence in it. Public financing greatly reduced the impact of big money in North Carolina’s judicial elections, now with it it gone, the state’s upcoming judicial elections may be one example to the nation, of just how much justice really costs.


Pennsylvania needs to get its act together and reform our own judicial selection model. The bipartisan judicial merit selection legislation, currently pending in the House, will guard Pennsylvania judges from the insidious effects of big money, and assure Pennsylvanians that our judges are not for sale.


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Feb 25 2014

Playing Games with Justice

There is something peculiar happening in the LoneStar State this judicial campaign season. An impending Republican primary for Texas Supreme Court, has made strange bedfellows of Democratic trial attorneys, and Republican challengers, with the former raising money for the latter.


According to the Houston Chronicle, a coalition of Texans led by Democratic trial attorneys John Eddie Williams and Lisa Blue Baron, recently held a fundraiser for the political action committee Balance PAC, which supports three Republican challengers in primary races against incumbent Texas Supreme Court Justices. Political observers believe that the bipartisan fundraiser is an effort by Democrats to unseat incumbent Republican judges through primary challenges. This is just another symptom of Texas’s highly contentious judicial selection model.


Texas’s system of partisan judicial elections has, for years been fueled by special interest money from both sides of the aisle. Efforts to reform this system have

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equally been dogged by both political parties, making money a major issue in Texas’s judicial selection scheme.


Several attendees of the fundraiser were critical of Texas’s judicial selection scheme, including Republican plaintiff’s lawyer Mark Lanier. In a quote that seems the capture the dilemma that lawyers face in Texas under this system, Lanier stated “I think the partisan election of judges is the worst possible way to choose judges. I am not a fan, but I’ve got a responsibility to play in the system.” Balance PAC spokesman Eric Axel further noted that “This is a broad coalition of Texans who believe the court has been taken over by multinational corporations,” referring to the perception that corporations generally win on appeal in Texas, because they have the Supreme Court in their pockets.


Unfortunately, Pennsylvania also has partisan judicial elections. Unlike Texas, where the parties are working together to game the system, however, in Pennsylvania, the parties are working together to reform it. Last fall, Democratic Representative Brian Sims, joined Republican Representative Bryan Cutler, to introduce judicial merit selection legislation. This legislation would eliminate the perception that judges are influenced by campaign contributions and demonstrate Pennsylvania’s leadership in judicial reform. It’s time for Pennsylvania to move forward on merit selection for appellate judges.


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Feb 06 2014

Women, Minorities and Merit Selection

Published by under Merit Selection

Studies reported by the American Bar Association demonstrate that merit selection, when compared to other methods of judicial selection, produces the greatest number of women and minority judges.

Merit selection allows for greater diversity of applicants and reduces the potential of women and minority underrepresentation. Current merit selection legislation proposed by PMC emphasizes the importance of choosing a diverse Nominating Commission that reflects the demographic diversity of Pennsylvania. As noted by the American Bar Association, diverse nominating committees commonly result in more diverse judicial applicants and appointments.

Furthermore, as mentioned by retired Superior Court Judge Phyllis W. Beck during a talk with PMC’s Lynn Marks on merit selection, there is almost a “political guarantee” that women and minorities will be strongly represented in the applicant pool through merit selection. Underrepresented voting minorities can have more of an input under merit selection compared to the current election system. For example, governors, who nominate judges with Senate confirmation, can also prioritize the selection of qualified women and minority judges in their decision. Generally, elected officials are aware that it is in their best political interest to select individuals that reflect the varied demographics of their state.

If we want a judiciary that reflects the diversity of our society, merit selection is the way to go.

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Dec 10 2013

Crossing the Great Divide

Published by under Merit Selection

In Minnesota, much like Pennsylvania, a constitutional amendment that would change the way some judges are chosen is making its way through the state legislature. What’s noteworthy about this bill is the broad coalition of groups supporting the change.

The Coalition for Impartial Justice includes the AFL-CIO, the Chamber of Commerce, the League of Women Voters, Common Cause, the Bar Association, all of the big businesses in Minnesota, a bipartisan group of three former governors, three former Minnesota Supreme Court Chief Justices, and one current Minnesota Supreme Court Justice.

There aren’t many issues that could unite so many diverse interest groups, but judicial Merit Selection bridges social and political gaps. Judicial integrity is truly a subject that affects us all. “We want judges to be impartial and fair. Yet…we now have the spectacle of unlimited money being spent on judicial candidates who have platforms.” Pennsylvania’s own Merit Selection bill has even brought together the unlikely team of Reps. Bryan Cutler (R-Lancaster County) and Brian Sims (D-Philadelphia), who joined forces to co-sponsor the bill in the PA House. Other than their first names and their support of Merit Selection in Pennsylvania, these two have little in common. Yet they’ve put their political differences aside to promote a bill that they both believe will benefit all Pennsylvanians.

Whether you live in Minnesota or Pennsylvania, work for a big corporation or a small nonprofit, a Republican or a Democrat, we all want justice to be administered by fair and impartial judges operating fair and impartial

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courts. No person should go to court feeling disadvantaged because his or her opponent gave a hefty campaign donation to the judge hearing the case. If implementing Merit Selection will repair the public’s damaged perception of the judiciary, then we, too, should unite across the many barriers that divide us to make a change that will benefit us all.

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Nov 21 2013

Bipartisan Duo Introduces Merit Selection Legislation

The two major political parties are sharply divided on many issues. Some issues are “Republican.” Others are “Democratic” But merit selection is neither. As stated by Rep. Bryan Cutler (R-Lancaster), “merit selection transcends political ideology. It’s Republican. It’s Democrat. It’s bipartisan.”

At a news conference announcing legislation to institute merit selection at the appellate court level, Rep. Cutler was joined by Rep. Brian Sims (D-Philadelphia) and Rep. Pamela DiLissio (D-Montgomery). Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, and Susan Carty, President of the Pennsylvania League of Women Voters, were also in attendance.

The merit selection resolution was introduced and referred to the House Judiciary Committee on Monday, November 18, 2013. The text of the bill is available here.

“There are no red herrings here. Both parties are supporting [the merit selection legislation] because it is really good policy,” said Rep. Sims.

Merit selection is good policy because it doesn’t make sense to use a completely partisan process to select people for a job that is nonpartisan. As stated by Marks, “justice is not conservative, Republican, liberal, or Democrat.” Instead, justice is all about “ensuring that all Pennsylvanians can come to court knowing their cases will be heard by fair and qualified judges.”

According to Rep. Cutler, this goal is frustrated by judicial elections because the political process has rewarded name recognition and the ability to raise money rather than credentials. Rep. Sims added that spending in judicial elections is very high and “three-quarters of Pennsylvanians think that judges are [influenced] by campaign contributions.”

Compounding these problems is the fact that media coverage of judicial elections is sparse, and “because of all the pressures of the day and the fact that people are busy, most voters cannot do their homework on judges,” Rep. DiLissio commented. As a result, voters often cast their ballots based on a variety of factors that have nothing to do with the candidates’ qualifications. For instance, people commonly vote for candidates that share their political affiliation or are from their hometown. Voters will also frequently vote for candidates that have familiar sounding names. This turns judicial elections into a bit of a crap-shoot, and the selection of judges should not be left to chance.

Under merit selection, there would be an exhaustive vetting process. A 15-member bipartisan citizens’ nominating commission would review the qualifications of prospective judges, including their legal experience, reputation for ethical behavior, and fairness. The governor would then nominate one candidate for each open appellate court seat from a short list created by the commission, and the Senate would confirm or reject the nominees. Confirmed judges would serve a four year term before facing the voters in an uncontested retention election, and they would run for retention every ten years thereafter.

It is important to remember that only the people can change how judges in Pennsylvania are chosen. Any change in the current system must be approved by the voters in a constitutional referendum, so the people have the final say. But the people should vote to approve merit selection because “the election system has proven to fuel the public’s lack of trust, faith, and confidence [in the judiciary]. Pennsylvanians have the right to have their faith restored,” said Rep. DiLissio.



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Nov 19 2013

Let’s Stop Playing “Pin the Tail on the Donkey (or Elephant)”

According to a recent editorial in the Pittsburgh Post-Gazette, the judicial elections that just took place were “another game of pin the tail on the donkey (or the elephant).” Due to limited information about the candidates, many voters were forced to rely on “vague name recognition, ethnicity of names or political affiliation- all of which have little to do with finding the best judge.”


Making matters worse, voter turnout was extremely low- in Philadelphia, the preliminary figure is 11.5 percent. The turnout in many other counties is believed to be in the single digits, and it has been estimated that only 14 to 17 percent of all eligible voters statewide cast ballots. Unfortunately, low voter turnout is the rule rather than the exception.


As stated by the Post-Gazette editorial board, there is a better way to select judges. That way is merit selection.


Under a merit selection system, a knowledgeable panel of lawyers and non-lawyers would thoroughly vet judicial candidates. For instance, they would review applications and writing samples, hold interviews and public hearings, and conduct background checks. The governor would then appoint nominees from lists prepared by the commission, and the Senate would confirm or reject them. After four years, appointees would face the voters in retention elections, and they would run for retention every ten years after that.


Reps. Brian Cutler (R-Lancaster) and Brian Sims (D-Philadelphia) have sponsored a resolution to institute such a system in Pennsylvania. The Post-Gazette applauded its introduction, stating that “it’s past time that something was done. The expenses of appellate court races is out of hand and all the money brings with it the threat of corruption.” Pennsylvanians for Modern Courts joins the Post-Gazette in commending the resolution.

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Nov 08 2013

New Politics

Published by under Merit Selection

Election day in Pennsylvania came and went without much fanfare, but judicial elections are a bit like ducks on ponds. Above the water, they don’t attract much attention and don’t result in much controversy. Under the water, the candidates and their committees are scrambling like crazy to make connections and raise money.

I know you’re asking yourself, “Judicial elections are so boring! What do the candidates need money for?” Candidates need the money because all that commotion under the water is stirring up dirt. More and more, judicial campaigns are looking alarmingly similar to ordinary political campaigns. In recent years, judicial campaigns have included everything from Super PACS and mudslinging ads to independent spending by supporters and detractors alike.

The New Politics of Judicial Elections, a collaboration between PMC partner organizations The Brennan Center for Justice and Justice at Stake and the National Institute on Money in State Politics, has been tracking this issue in a series of reports since 2000. A new report was just released. It looks at the 2011-2012 election cycle to track continuing trends and monitor new developments. The 2011-2012 election cycle was record breaking, but not in a good way.

Spending on television ads hit record highs, exceeding the previous record by more than 25%. Independent expenditures (money spent by supporters or detractors “unaffiliated” with a candidate’s official campaign) accounted for more than 27% of the total amount spent on high court races around the country. This, too, is a new record, exceeding the previous mark by more than 50%. Special interest groups best known for influencing national political races inserted themselves in state judicial contests around the nation. Perhaps most strikingly, total estimated spending on judicial races in 2011-2012 was only slightly lower than total spending in the 2007-2008 PRESIDENTIAL election cycle ($56.4M for 2011-2012 judicial elections vs. $60.7M [adjusted for inflation] for the 2007-2008 presidential election).

The bottom line is this: Things are not good! More money than ever is pouring into judicial elections around the country and it’s coming from special interest groups. Many donors end up appearing in state court before the judges that they helped get elected, and this practice is killing the public’s perception of the judiciary.

Pennsylvania needs to get out of the judicial election business. If this report isn’t an indication that judicial elections are bad for the judiciary and bad for the public, I don’t know what is. As time goes on, things are only getting worse. Let’s get the message to our representatives that it’s time for Pennsylvanians to change the way that we choose judges.

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Oct 25 2013

"Smart Talk": Perceived Corruption and Low Participation in Judicial Elections

Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, recently appeared on WITF’s “Smart Talk” radio program to discuss why Pennsylvania should pick judges through merit selection.

At one point in the program, the host, Scott LaMar, asked Marks “what makes a good judge?” Marks responded that good judges have extensive legal knowledge and experience, even temperaments, and reputations for ethical behavior both on and off the bench. Additionally, unlike other public officials, judges are not representatives of the people. Thus, good judges never base their decisions on public opinion like a legislator or a governor would. Instead, they decide cases based upon the facts and the law.

One of the major problems with contested elections is that they are incompatible with the role of judges as impartial arbitrators and “turn judges into politicians,” said Marks. This occurs because judges, particularly at the appellate level, must raise large sums of money to win. Most of this money comes from lawyers and special interest groups who regularly appear in court, and judges are not required to recuse themselves from cases involving individuals that have donated to their campaigns.

“I am not saying that judges are corrupt and are making decisions based on where [their campaign contributions] came from,” said Marks, but “most Pennsylvanians and most Americans believe that campaign contributions affect a way a judge decides cases.”

This is very problematic because the cornerstone of the judiciary is fairness, both real and perceived. If the people believe that judges can be bought, half of that cornerstone is ripped from the foundation of the justice system. Merit selection, however, preserves public confidence in the judiciary by eliminating most of the money from the judicial selection process.

The problems associated with judicial elections are not limited to perceptions of impropriety. Elections also limit the pool of qualified judicial candidates. According to Marks, many qualified lawyers don’t bother running for judicial office because they don’t have the campaign skills, access to money, or connections required to win. This is exemplified by the fact that only one Democrat ran in the last Supreme Court primary race. Under a merit selection system, however, candidates do not have to campaign to get into office. Instead, they apply for a judicial position, and they will be appointed if they are the most qualified candidate.

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Additionally, voter turnout in judicial elections is almost always very low. This may be due, at least in part, to the fact that it is difficult for voters to get the information necessary to make informed decisions, said Marks. Most media outlets refuse to cover judicial races in much detail, if at all, and most campaign advertisements contain little information other than generic recitations that the candidate is “fair-minded” and “tough on crime.”

In contrast, members of a citizens’ nominating commission thoroughly vet the candidates in a merit selection system. Specifically, they review applications, hold interviews and public hearings, read court opinions and other legal documents, and do other things that the general public simply does not have the time or resources to do. The commission then sends a list of nominees to the governor, who then appoints one of them, subject to Senate confirmation. Four years later, the appointee faces the voters in an uncontested retention election. Thus, the people retain the final say over which judges stay and which ones go.

It is also important to understand that merit selection does not amount to “taking away the power of the people to vote for judges” (a common accusation). A constitutional amendment is required to change the way in which judges in Pennsylvania are selected, so the people would be the ones deciding whether they want to embrace merit selection.


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