Mar 16 2012

NY Times Editorial Praises Effort to Implement Merit Selection in PA

Published by under Opinion

An editorial in the New York Times entitled “No Way To Choose A Judge” urges Merit Selection as a good solution for Pennsylvania. The editorial recounts recent judicial election news in Alabama and the ongoing investigation into the use of government staff for the elections of State Senator Jane Orie and her sister Supreme Court Justice Joan Orie Melvin. Then the editorial notes:

These seamy doings have helped spark a promising effort by Pennsylvanians for Modern Courts, a nonprofit advocacy group, to persuade the State Legislature to approve a constitutional amendment that would scrap competitive partisan elections. Instead the state would adopt a new system of initial merit appointment and nonpartisan retention elections.

The editorial notes that no system of choosing judges is perfect but opines that Merit Selection “would be a start toward ridding the state’s courtrooms of politics and campaign cash.”

Passing the pending legislation is the first step in a long process of amending the constitution, a process that culminates in a public referendum.

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We hope the people of Pennsylvania will get the opportunity to decide whether there is a better way to choose appellate court judges.

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Jan 31 2012

Trying to Solve the Money Problem

Published by under Merit Selection

We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.””  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to

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that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

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Aug 05 2011

Vanzetta Penn McPherson Speaks Out in Favor of Merit

Published by under Judges,Opinion

In a recent Montgomery Advertiser editorial, Retired U.S. Magistrate Judge Vanzetta Penn McPherson advocates a transition from judicial elections to Merit Selection of judges. Her critique of judicial elections follows the resignation of Alabama Chief Justice Sue Bell Cobb. McPherson seconds Cobb’s concern that partisan elections of judges “perpetuate the public perception that judges are selected more on campaign contributions than on ability.”

McPherson distinguishes the role of judges from governors and legislators. “The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.” In direct contrast, judges should rule objectively, without concern for party politics or personal ideologies, says McPherson. “It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.”

McPherson faults judicial elections beyond the involvement of money and politics. Rather, she identifies the crux of the problem to be the lack of emphasis on judicial qualifications. McPherson describes the intellectual challenges of serving on the bench and the need for judges with significant experience, strong academic achievement, effective management skills, and reasonable temperance. According to McPherson, Alabama’s codified qualifications fail to measure up. And before 2009, she says judicial campaigns were “more likely to highlight a candidate’s religious faith, church attendance and political ideology than the candidate’s abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.”

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McPherson believes Merit Selection is “in the public’s best interest,” because it prioritizes a judge’s qualifications and temperament. We support her fight to change Alabama’s system of judicial selection and urge Pennsylvania to heed her call.

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Aug 02 2011

Birmingham News urges Alabama to enforce law limiting judicial campaign contributions, consider merit selection

Published by under Merit Selection

Saturday’s edition of the Birmingham News featured an editorial urging Alabama to enforce its sixteen-year-old law regulating judicial campaign contributions. The law requires that judges recuse themselves from cases in which a party or their lawyer donated $2000 or more to the judge’s campaign ($4000 for appellate judges). However, the law has not been enforced due to a standoff between the Alabama Supreme Court and the state Attorney General’s office: the Supreme Court refuses to write the rule required for the law to take effect, saying that the law requires preclearance from the U.S. Justice Department (due to Section V of the Voting Rights Act). However, the Attorney General has refused to seek pre-clearance, demanding that the judges author the rule.

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A three judge-panel in D.C. recently refused to hear a challenge to the law, writing that the law had not harmed the plaintiff in any way. The judges wrote that the law was not likely to be enforced in the near future and that “until one of these two Alabama political institutions changes its policy, it is at the least a game of political chicken, with both players staring (or perhaps winking) at each other.” During the past decade, Alabama has had the most expensive judicial elections in the country, and the law would minimize the effect of campaign cash on the courts. Given the influence of campaign contributions on the Alabama judiciary, the editorial suggested that the state either enforce the law, or move to merit selection for statewide judgeships.


Enforcement of the law would indeed be a welcome step in the right direction and would hopefully curb the costs of Alabama’s judicial elections. However, it may not be a cure-all: the law does not require recusal for third-party spending. As we have seen recently in Wisconsin, even where direct contributions are limited, independent expenditures may still drive up the cost of judicial elections, enabling mud-slinging on both sides. Merit selection has been implimented successfully in several of Alabama’s counties and state-wide merit selection is a solution that Alabama should explore.


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Jul 01 2011

Alabama Chief Justice Cites Judicial Elections as a Reason for her Resignation

This week, Alabama State Supreme Court Chief Justice Sue Bell announced her resignation effective August 1st, 2011. In her statement, she cited the failure of AL courts to modify their judicial selection system as one of her reasons for leaving. “Alabama appellate court justices should be selected either on merit, and retained or rejected by a vote of all the people, or at least cam­paign without the added po­litical emphasis of party la­bels,” declared Cobb. According to former president of the Alabama State Bar Association, J. Mark White, “She tried every way possible, along with the bar, to get a more civilized and economical way to select our judges.”

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The numbers representing campaign costs in Alabama’s partisan elections are astounding. A study conducted by Justice at Stake revealed that AL Supreme Court candidates raised over $40.9 million in the past decade. According to a Thomson Reuters News & Insight article, “Cobb herself received $2.62 million in contributions during the 2006 Alabama Supreme Court election, a multi-candidate election that was the costliest state judicial race ever, with candidates raising a total of $13.5 million, according to Follow the Money.” In her resignation, Cobb explained that this method of judicial selection “perpetuate[s] the perception that judges are selected more on campaign contributions than on ability.”

Calls for judicial selection reform can be heard throughout the country. New York recently changed their recusal standards in an effort to restore public confidence in judicial impartiality. An impassioned editorial beseeches Alabama to do the same: “If anything, Alabamians should question judges’ impartiality even more than people do in other states, and the numbers from national polls already are high. In a Harris Poll last June, 71 percent of those surveyed nationally believe campaign contributions to judges have some or a great deal of influence on their decisions.”

The Justice at Stake survey lists Pennsylvania second after Alabama in campaign contributions, receiving around $21 million. However, recusal rules alone will not solve the problem. PMC agrees with Chief Justice Cobb that judges should not be obligated to raise millions of dollars to earn a seat on the bench and worries about qualified candidates who may be dissuaded by the need to raise enormous amounts of money. Cobb explained, “Another statewide race at this point in time would require me to raise millions of dollars while constantly endeavoring to appear and remain impartial and would require me to sacrifice precious time which I could be spending with my family.”

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Feb 08 2011

Alabama Judicial Campaign Disclosures Reveals Unusual Giving

Published by under Judges,News

Campaign finance disclosure documents from last year’s Alabama Supreme Court race support the old adage about politics making strange bedfellows. The Birmingham News reports that funding for two Republican candidates for the state’s highest court came from plaintiff trial lawyers, who’ve traditionally supported Democrats in state appeals court races.

Through a complex series of contributions to political action committees and media consultants, plaintiffs firms directed nearly $950,000 to the campaigns of Republican hopeful Tracy Cary (who lost to Justice Mike Bolin in the June 1 primary) and Justice Tom Parker (who was re-elected to the court in November). Thanks to Alabama’s campaign finance laws, donations made in judicial primaries were kept secret until well after the general election.

The 2010 election may have marked a new approach, with Democratic backers funding Republicans as part of their political strategy, said GOP state chairman and new Speaker of the House Mike Hubbard of Auburn.

“I suspect that a lot of the races will be fought in our primaries,” he said. “The Democrats feel they can’t win in the general election, so they put up or fund a candidate in the Republican primary.”

Why would organizations that traditionally support Democratic candidates feel compelled to support Republicans in judicial primaries? Because partisan judicial elections are all about political connections and campaign fundraising. Who can blame plaintiff’s firms for feeling like they have to spend big bucks on judicial campaigns? The business interests that they litigate against certainly are. And if pumping that money into Republican primaries makes it more likely that they’ll be spending to actually put a candidate on the bench, then it sounds like a better investment.

When we select judges through partisan elections, these are the kind of calculations that determines who reaches the bench. Wouldn’t it be great if we could choose our appellate judges based on their experience, knowledge and qualifications, rather than their ability to work the political system, and raise lots of campaign money? That’s why we feel that Merit Selection is a better way to choose appellate judges in Pennsylvania.

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Nov 08 2010

Free the Judges

In the wake of the 2010 election season, the Birmingham News editorial board criticizes the practice of electing judges in Alabama. The editorial uses as an example a particularly ugly race for a seat on a circuit court.

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Describing the nasty tones that both campaigns utilized, the editorial comes to the conclusion that: “[b]oth candidates were demeaned in the attack/counterattack cycle, and so was the judicial system.” The editorial also correctly states that the ability to run a successful political campaign has n

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o bearing on one’s qualification to be a good judge.

The editorial concludes with a call for Alabama to change its judicial selection process, stating a preference for moving to an appointment-retention system. Acknowledging that there is no perfect system, the editorial board believes that such a change could: “emancipate judges entirely from a process that requires them to raise gobs of money and end up beholden to the people and businesses that stand to gain or lose from court actions.”

We agree that it is time for a change, and that merit selection provides the best way of ensuring fair and impartial courts.

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Oct 28 2010

Expensive Judicial Elections Create the Perception of “Tainted Justice”

Over at Gavel Grab, Peter Hardin draws attention to the costly judicial elections underway in Alabama. Noting that Alabama has the most expensive Supreme Court elections in the country, Hardin examines an editorial that appeared in the Press-Register criticizing judicial elections.

The editorial opens with a strong critique of judicial elections in Alabama: “As long as state Supreme Court justices have to raise money – sometimes lots of it – to win their seats, justice in Alabama is going to look like it’s for sale.” It goes on to describe how judicial candidates go about raising money in the same way as candidates for other offices – going on the campaign trail, shaking hands, and actively fundraising. This creates the perception that judges can be influenced by campaign donations and political preferences. The editorial notes that Alabama’s rules regarding political action committees worsen the perception problem because they allow candidates and donors to hide the source of donations. The editorial echoes Justice at Stake executive director Bert Brandenburg’s concerns over judicial fundraising:

“As long as we’re asking more judges to dial for dollars from the people who appear before them, then the more we’re asking judges to act like Huey Long on the campaign trail and then turn around and act like Solomon in the court room.”

We agree that judges should not be in the fundraising business, and that their presence there diminishes public confidence in an impartial judiciary. We believe that a change to the selection process is necessary, and that merit selection is the way to ensure fair and impartial courts. The editorial concludes with a concern that we share in Pennsylvania:

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“As long as the litmus test for Alabama Supreme Court justices is how well they can fund a political campaign, then the state’s going to be stuck with the reputation – or at least the perception – that it tolerates tainted justice.

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Sep 21 2010

“A Recipe for Corruption”

An editorial in the Birmingham News condemns Alabama’s system of judicial elections and supports a change to an appointment-retention system. The editorial looks at the recent poll by Justice at Stake, in which a majority of Republicans and Democrats asked said that they believed campaign donations significantly impact court rulings.

Noting Alabama’s reputation for having the most expensive judicial campaigns as well as the ease with which Alabama law allows special interests to disguise the mo

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ney they give to judicial campaigns by going through political action committees, the editorial explains the trust problems judicial election fundraising is creating:

It’s a recipe for corruption in any arena, but it’s particularly corrosive when it comes to courts that are supposed to be impartial arbiters of justice. Even a decision with a firm basis in the law looks shady when the winning party bankrolled the judge.

We agree that the role of money in judicial elections adversely affects the public’s relationship with the court system. Merit Selection is a way to get judges out of the fundraising business and restore public confidence in the courts.

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Sep 07 2010

A Twist on the Money Problem

We often write about the Money Problem — the problem caused by a judicial election system that essentially requires candidates to raise campaign funds from parties, lawyers and law firms that are likely to appear before the winning judges in the future.  Here’s an interesting twist on the problem brought to us from Alabama.  According to the  Gadsden Times, two sitting Supreme Court justices are making financial contributions to the campaigns of current candidates for the Supreme Court.

The very fact of the donati

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ons should raise eyebrows –do we really want sitting judges getting involved in electing their colleagues on the bench? But that’s not what’s newsworthy in Alabama.  There, the story made news because two Republican justices were making contributions to Democratic candidates.

The money flowing to judicial campaigns is already a river of trouble.  Do we really need to complicate things by having  judges giving money in hopes of influencing who will be sitting with them on the bench?

There is a solution: get judges out of the fundraising business altogether by replacing appellate court elections with Merit Selection.

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