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An article in the Allentown Morning Call offers a preview of what the upcoming judicial elections will look like. Noting that judicial candidates are limited in what they can tell voters, the article quotes Muhlenberg College political scientist Christopher Borick who explains:

The contests tend to boil down to name recognition, reputation and resume. The most likely candidate to succeed is someone who is well-known and has money and organization behind them.

These are not necessarily the factors that make someone a good judge. PMC Executive Director Lynn A. Marks is also quoted in the article explaining the problems inherent in electing judges:

[T]he state’s system distracts from what the focus should be: weighing qualifications and skills and determining who would be best on the bench.

Marks said she gets calls regularly from people who feel they didn’t get a fair hearing in court because the judge had taken campaign contributions from the other side.

We will be watching and reporting about how much money the judicial candidates are raising and from whom, what the candidates are saying to voters, and how the elections are playing out. Stay tuned.

The Allentown Morning Call reports that a judge in Northampton County is being criticized for failing to reveal that he received campaign contributions from a party involved in a case. The case initially had been assigned to another judge, who recused herself because she had received campaign contributions from one of the parties.  Although the second judge raised other potential conflicts of interest, he did not disclose the campaign contributions and did not recuse.

In Pennsylvania — as in most states — judges are not required to recuse when campaign contributors are involved as parties or lawyers.  That very issue is now before the United States Supreme Court in Caperton v. Massey, which asks whether the Due Process Clause requires recusals in cases involving very signficant campaign donors.

The donations at issue in the Northampton County case are much smaller than in Caperton, but the same concerns are present: can courts maintain actual independence and can the public believe courts are independent when judges preside over cases involving campaign contributors?  We have long believed that the increasingly important role of money in judicial elections is damaging to the independence of the judiciary and the public’s confidence in the fairness of the courts.  The best way to solve this problem is to get judges out of the fundraising business.  Merit Selection can do this.

The Allentown Morning Call reports that in the midst of this year’s judicial elections, Merit Selection is on the legislative agenda.  State Senator Jane Earll (R, Erie) and State Representative Josh Shapiro (D, Montgomery), sponsors of last year’s Merit Selection legislation, confirmed that Merit Selection legislation will be introduced into the legislature this session.

The push for reform targets inherent problems in the judicial election process:

[R]eformers say that forcing judicial candidates to behave like politicians fosters the impression that campaign donors might get a fairer shake in the courtroom.

That’s because that clutch of potential donors that [candidates] touted to Democrats [at last week's endorsement meeting] are fellow attorneys and potential litigants who may one day have business before them.

PMC’s Shira Goodman explained why reform is needed:  “[The electoral] process does not do anything to raise the public’s trust [in the judicial system].”

A case in Northampton County points out another side effect that comes from electing judges. Sometimes, the electoral process itself will result in an entire court being unable to preside over a case because of potential conflicts.

The Allentown Morning Call reports that Northhampton County President Judge F. P. Kimberly McFadden issued an order recusing all county judges from presiding over a case involving Thomas E. Severson, a political consultant who has worked on several local judicial campaigns. Judge McFadden also requested that the Administrative Office of Pennsylvania Courts (AOPC) appoint an out-of-county judge to preside over the case.

Such requests are not unheard of. They’re made when, for some reason, all of the judges in a county may have potential conflicts of interest in a particular case. The ethical thing for judges to do in that situation is to allow another judge to take over. But we find it interesting that in this case, it’s the litigant’s involvement in the judicial election process that has created the conflict.

A similar situation arose last year in Philadelphia when President Judge Darnell Jones recused the entire Philadelphia Court of Common Pleas from a case involving a challenge to Congressman Bob Brady’s filings for his mayoral campaign. The reasoning here was that Bob Brady is very involved in local judicial elections and therefore an appearance of conflict could arise in any sitting judge — whether Brady supported that judge’s election or not — presiding.

But what about others involved in the election process — like campaign donors?  Should there be rules requiring recusal when a campaign donor is involved as a lawyer or party?  Currently there are no rules that explicitly require that, but as we posted here, a case has been filed with the United States Supreme Court raising this question as it relates to significant campaign contributors.

One way to solve the problem is to take money and campaigning out of the system of picking judges.  We can do this for the appellate courts by switching to Merit Selection.