judgesonmerit.org

Immediate Past President of the American Bar Association H. Thomas Wells confesses that he suffers from “Merit Selection Envy.”  The Chatanooga Times Free Press reports that Wells explained:

“I will tell you from a personal standpoint that those of us in Alabama who have partisan elections of judges look at Tennessee with a great deal of envy with how you select your Supreme Court judges through a merit selection plan. I certainly hope you don’t do away with it.”

Like Mr. Wells, we live in a state that elects all judges in partisan elections. So, we too must admit to Merit Selection Envy.  We think the cure would be a full dialogue that allows the people of Pennsylvania to decide whether we should change the way we select appellate judges.

The Birmingham News reports that American Bar Association President — and Alabama attorney — Tommy Wells is sharply criticizing judicial elections.  According to Wells, judicial elections “amount to little more than attempts at influence peddling.”

Wells speaks from experience. Alabama is one of the few states — like Pennsylvania — that elect all judges in partisan contests.  Last year, the race for one seat on the Alabama Supreme Court cost five million dollars.  Wells opined:

“The amount of money that was spent was obscene, and amounted to more than is spent in the whole state for legal services for the poor.”

Remember, much of this money comes from lawyers and entities who later litigate before the judges they helped elect.  It’s time to get judges out of the fundraising business.  Merit Selection would do just that.

The Birmingham News reports that the 2008 Alabama Supreme Court race was the most expensive high court election last year.  The two candidates and third party groups spent a combined total of $5.3 million:

Total candidate spending was nearly $4.3 million – $2.5 million by [Deborah Bell] Paseur and $1.8 million by [Greg] Shaw, according to state campaign disclosures, including final accountings filed this week. Third-party groups spent at least $1 million more.

During the 2007 Pennsylvania elections, four candidates running for two spots on the Supreme Court raised a total of $7,846,478.  This does not include third party spending.  And, an out of state group active in Alabama this year, the Virginia-based Center for Individual Freedom, spent more than one million dollars on ads supporting one candidate.

What does all this mean for Pennsylvania in 2009?  We are electing one Supreme Court justice and five more judges for the intermediate appellate courts.  Will we be setting yet new records in the fundraising and spending games? Time will tell, and we’ll keep you posted.

In the wake of another expensive Supreme Court race, Alabama is looking for a way to deal with the problem of money in judicial elections. The Press Register reports that a bill has been introduced into the legislature to cap contributions to judicial campaigns at $500; currently there are no limits:

Critics have said the money present in the campaigns could lead to judges feeling beholden to contributors should they appear in court. Language in the act says that the large amount of money in judicial races creates “the potential for corruption and, as important, the appearance of corruption.”

This is not the first effort to address the problem. To our mind, contribution limits are not the best solution, because it doesn’t remove money from the process and actually encourages candidates to seek out even more donors. But we’re glad others are taking note that there is a big problem when judicial candidates raise money from the lawyers and parties who they’ll ultimately be judging.

The Montgomery Adverstiser reports that the Alabama Attorney General will be investigating the conduct of certain outside groups that ran ads and made phone calls to voters during the recent judicial elections. The issue surrounds allegations that false information was spread in these calls about one candidate. The state Bar Association criticized the misinformation and urged the Attorney General to investigate. Although the Attorney General agreed to do so, he argued that the Bar Association’s criticism of the camaign conduct crossed the boundaries into inappropriate partisanship.

The news report makes one wonder, however, whether the tension between the Attorney General and the Bar Association stems more from their differences over the best way to select judges:

King [the Attorney General], an advocate of judicial elections, said another of the association’s news releases portrayed judicial elections as demeaning.

That news release talked about the rising cost of judicial campaigns and the growing role of special interest groups in campaigns.

White [Bar Association president] sent a letter to King on Wednesday calling the news releases “a necessary and appropriate response.”

While reasonable people can and do disagree about how best to choose judges, this debate should not influence action on complaints about campaign misconduct. We hope Alabama will be able to separate these issues and give each the full and fair examination it deserves.

In a report about the current judicial elections in Alabama, The Press-Register notes:

With millions of dollars coursing into the campaign coffers of candidates for Alabama’s appellate courts, an age-old question has resurfaced: What should judges do to remove doubt about their impartiality?

It’s not just reform groups and the public who are concerned about the influence of money in judicial elections. The report explains that some judicial candidates and bar association leaders also believe that steps should be taken to eliminate the perception — and perhaps the reality — that campaign money can affect judicial decision-making.

Some of these folks are talking about whether recusal should be mandated in cases involving campaign donors.  This isn’t a new issue and it’s not unique to Alabama — we’re still waiting to hear whether the United States Supreme Court will take up the West Virginia case of Caperton v. Massey which poses similar questions.

This is just another example demonstrating why money and selecting appellate judges shouldn’t mix.

Adding to Alabama’s already expensive and nasty Supreme Court election, a Virginia-based organization has begun a series of television advertisements promoting its preferred judicial candidate, spending over $1 million to broadcast ads praising candidate Greg Shaw.  The Press-Register reports that, in response to the organization’s ads, candidate Deborah Bell Paseur’s campaign wants Shaw to demand that the third-party organization either disclose its contributors or stop broadcasting the advertisements.

‘The whole thing we’re interested in is finding out where this money is coming from,’ [Paseur's campaign manager Marion] Steinfels said. ‘Who is funding these ads?’

Factcheck.org takes a closer look at the Alabama race, carefully scrutinizing the role of the third-party organization.  Gavel Grab is also following this development.

Last year, the same Virginia-based organization broadcast similar ads leading up to the most recent Pennsylvania Supreme Court race, urging voters to “thank” one of the candidates.   Ultimately, because the ads never explicitly advocated for the election of a specific candidate, and were considered “issue ads”, the group was able to avoid disclosing its contributors.

Judicial selection and campaign money: a bad mix.

The Birmingham News reported recently on the role of political action committees (PACs) in channeling contributions from various sources into the Alabama Supreme Court race.  PACs are set up to let various parties and interest groups pool their money.  The PAC appears as a campaign contributor, but the actual contributors’ names do not.

The system also makes it difficult for voters to figure out who financially backs candidates, David Lanoue [chairman of the political science department at the University of Alabama] said. “That is meaningful information,” he said. “Donors have agendas.”

“Alabama needs to peel back the curtain so the average voter can know who is giving the money and which agenda it is likely to represent,” said Charlie Hall, of Justice At Stake.  In a recent post, Gavel Grab provides a closer look at funding for the Alabama Supreme Court race.

As we have previously noted, the Alabama Supreme Court race is becoming more expensive and increasingly negative.  The influence of large campaign contributions, through PACs or from direct donors, can be eliminated by replacing judicial elections with Merit Selection, a system that focuses on one’s qualifications as a judge, not on how much money one can raise.

The Birmingham News reports that the “relatively tranquil Alabama Supreme Court race turned last week toward more familiar territory of big spending, special-interest politics and attacks on the candidates.” What’s happening in Alabama should come as no surprise to those who watch state court elections.

The candidates are trading accusations about false and misleading polls and advertisments.  The amount of money spent on ads is steadily increasing, and an out-of-state group from Virgina, the same group that got involved in the 2007 Pennsylvania Supreme Court elections, is spending money to advertise for one of the candidates.  Gavel Grab has an interesting report about this ad.

This election is following trends set in other states where judges are elected in partisan contests. Fundraising records are broken almost immediately after they are set, and third parties, including out-of-state groups, are getting involved in the elections.  Does using this system to select appellate court judges make any sense?

Editorials in the Montgomery Advertiser and the Tuscaloosa News, echoing the call of a current Supreme Court candidate, urge the state to reject judicial elections in favor of Merit Selection.

The Montgomery Advertiser points out the escalating costs of judicial elections and the problems inherent in requiring future judges to raise campaign funds from lawyers and organizations likely to appear before them in the future:

Over the years, the Montgomery Advertiser’s editorial board has asked dozens of judicial candidates if they are affected by these large campaign donations. Almost invariably, each candidate says that he or she can set aside those donations in his or her mind and rule fairly on issues involving the donors.

But asked another way, not about each of them specifically but about judges in general, and many of them admit that it is a problem for some judges.

The Tuscaloosa News asserts: “the perception is that justice is for sale in Alabama. The unconscionable spending distorts the election process at the same time that it erodes the faith of state residents in an independent judiciary.”

Alabama is on the short list of states, like Pennsylvania, that elect all judges in partisan elections. The Montgomery Advertiser thinks its time for a change:

There are several variations on the merit selection theme being used by other states, but virtually any of them would be a major improvement on the nasty, costly and demeaning way Alabama now chooses its judiciary.

The Tuscaloosa News agrees “at least for the state’s highest — and most expensive — appellate offices.”

We hope the people of Alabama will heed the call for reform, and we hope the people of Pennsylvania will also realize that Merit Selection is a better way to select appellate judges.