Apr 09 2015

Justice Sue Bell Cobb Interview Highlights Need for Merit Selection

Published by under Judges,Merit Selection

Dave Davies of National Public Radio recently interviewed former Chief Justice of the Alabama Supreme Court Sue Bell Cobb an outspoken critic of judicial elections on the Fresh Air program.

Although her 2006 campaign for the Alabama Supreme Court is the second most expensive judicial election on record, that is likely to change this year with three seats open on the Pennsylvania Supreme Court. For judicial candidates to be successful, they must raise significant amounts of money. According to Justice Cobb, this is primarily because judicial candidates cannot effectively get their message out without airing campaign ads on television, which are increasingly expensive.

The requirement that judges must raise money and the influence of money in political races is increasingly problematic as it fosters a negative public perception of the judiciary.  Judges are supposed to be fair and impartial.

In Justice Cobb’s view, “It’s just not the way that judges ought to be elected because it is really tawdry. It’s difficult. It’s demeans the court, demeans the position. It’s just not appropriate. It absolutely makes people think less of the courts and judges. Nobody wants judges to have their hands out”

In addition to the problems inherent in fundraising by judicial candidates, judicial elections also require candidates who are also sitting judges to split their time. As Justice Cobb stated, “The time away from the office is a significant reason why we should not have judges selected the way they are selected in most states in the United States.”

Recalling her own time as a judicial candidate, Justice Cobb explained that she spent a significant amount away from her primary role of serving the public interest as a judge in order to remain competitive. “There was absolutely no way that I could do the job that was required for the people of Alabama and raise the amount of money that it was going to take to be re-elected.”

Along with Alabama, Pennsylvania is one of only six states that elect all our judges in partisan judicial elections. It’s clear that our system isn’t working. It’s time for merit selection in Pennsylvania. We deserve it.

Read more: http://www.al.com/news/index.ssf/2015/03/former_alabama_chief_justice_o.html


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Apr 08 2015

Judicial candidate fundraising is a double edged sword

The twelve candidates running for Pennsylvania Supreme Court filed their first financial reports of 2015 yesterday. For candidates and the public, fundraising is a double edged sword. On the one hand, judicial candidates need to raise substantial amounts of money to “send the message ‘I’m a serious candidate,’” according to G. Terry Madonna, a political scientist and pollster at Franklin & Marshall College.

On the other hand, fundraising by judicial candidates undermines public confidence in the judiciary. According to Lynn Marks of PMC “people overwhelmingly think contributors will have a leg up in court.” In a 2013 poll for the Brennan Center for Justice, approximately 9 out of 10 respondents said that campaign contributions have a “great deal” or “some” influence on how judges rule.

Making matters worse, most of the money “comes from lawyers and special-interest groups who have an interest in the outcome of cases,” according to Marks. Business and special interest groups are generally heavily involved in judicial campaigns. John Dougherty, the brother of candidate Judge Kevin Dougherty, is a member of Philadelphia-based Local 98 of the International Brotherhood of Electrical Workers. It is expected that they will be involved in his campaign. With large contributions from business interests and lawyers, and few contributions from individual voters, people may rightfully question whether the average Pennsylvanian can get a fair shake in court.

Lawyers also feel the heat in judicial elections. Marks stated, “Lawyers have told me they feel they are in a very difficult position if they don’t contribute.” Judge Wecht, a Supreme Court candidate, noted that the public may be impressed with judges who obtain attorney contributions, stating, “A lawyer has a perspective on the quality of a judge that a non-lawyer might not have.” In reality, it is more likely that the public will feel that a judge would not be able to make an impartial ruling when an attorney in front of him or her has contributed large sums to his or her campaign. Meanwhile, lawyers feel obligated to contribute to a campaign, or a judge may not look upon them favorably in the future. In the end, nobody wins.

By way of comparison, in 2007, the winners for the open Supreme Court seats, Debra McCloskey Todd and Seamus McCaffery, raised $3.8 million between the two of them for their judicial campaigns. The early fundraising numbers this year already indicate that this election’s spending race is likely to be even greater than years past.

There is no perfect solution to this problem. The best answer, however, is to adopt a merit selection system. Merit selection ensures that the best candidate is chosen for the job by using a bi-partisan selection committee to do the majority of the work. The messy politics and campaign fundraising is removed from the system. Judges are not politicians. They should not be required to fundraise as if they were. Pennsylvania deserves better – it is time to put a stop to judicial elections and implement merit selection.

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Apr 06 2015

In a Crowded Judicial Election, the Winner is Often Left to Chance

With more than 50 candidates vying for 12 open seats on Philadelphia’s Court of Common Pleas, some are questioning whether voters will be able educate themselves regarding each candidate and cast an informed vote. Philadelphia’s primary is May 19th, and time is running short. With such a crowded ballot, many are likely to vote based on arbitrary criteria, such as ballot position or name recognition.

So is it possible for people to educate themselves about the numerous candidates before heading out to the polls? In a recent article published in The Philadelphia Inquirer, the Philadelphia Bar Association’s ratings system is discussed. The bar association releases its ratings through a 30-member panel comprised of lawyers and other experts. This year the categories include “recommended,” “not recommended,” and “highly recommended.” So far, three candidates have been issued a “highly recommended rating,” with more ratings to be released shortly. The Inquirer is pleased with the addition of a “highly recommended” category, saying it could become a helpful “gold standard” for Philadelphia voters to look to. But is it enough?

As the article rightfully points out, other than the Bar Association ratings, there isn’t a great deal of information out there. Voters can turn to Google, but Googling each candidate would take a tremendous amount of time, and often does not yield much results. There are also political endorsements, but as the article points out, three Democrats endorsed by the party received a “not recommended” rating by the Bar Association. And with twelve open seats and only three “highly recommended” ratings currently issued, how are voters supposed to choose nine more candidates from the remaining congested field?

Not being able to obtain information on judicial candidates is obviously a major problem, with even greater implications at the appellate level. This year, Pennsylvania has three open seats on its Supreme Court. It is troubling that Pennsylvanians may lack information regarding candidates who are running for the highest court in our state. More likely than not, some of the candidates will be selected based on their position on the ballot rather than their experience and ability to handle the job. This, among other reasons, is why it is important to abandon judicial elections in favor of a merit selection system. Which judges are selected for the bench should not be left to chance. Merit selection is the best way to ensure that those who are most qualified for the job are chosen.

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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 PoliticsPA.com Poll

The website PoliticsPA.com 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 philly.com 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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