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.

A petition for certiorari has been filed in Caperton v. Massey – the case arising out of the mess of recent West Virginia judicial election campaigns. We’ve written about the situation stemming from the refusal of a justice to recuse in a case involving a significant campaign contributor. The case has made it through the West Virginia courts, and a high-powered legal team led by former Solicitor General Ted Olsen is appealing to the U.S. Supreme Court. The main question presented for the Court’s consideration is whether a judge’s failure to recuse in a case involving a major campaign contributor violates the Due Process Clause of the Fourteenth Amendment.

Several amicus briefs have been filed in support of the petition, including some filed by our national partners, the Brennan Center for Justice, the Committee for Economic Development and the American Bar Association. Gavel Grab has a post about the various briefs here.

This case presents an important opportunity for the high court to set standards for when judges should recuse in cases involving major campaign donors, and we’re eager to see what happens. Of course, we think the whole problem could be avoided by getting judges out of the fundraising business through the adoption of Merit Selection.

We’ve written a lot about the problems with judicial elections and the emphasis judicial elections place on fundraising and campaign skills. The American Bar Association Journal features an article this month that focuses on another key attribute for success in judicial elections: having the right name.

The article covers the troubles faced by a well-regarded judge in Los Angeles County with an unusual name. The political consultant who ran a successful campaign against this judge on behalf of a candidate rated not qualified by the local bar association summed it up perfectly:

People couldn’t pronounce that name, they didn’t know what [ethnicity] she was, and they didn’t know if she was a man or a woman. . . . You couldn’t come up with a worse name if you tried. I knew we could win that race.

This article underlines a point we’ve made before: judicial elections are not designed to focus on qualifications to serve on the bench. They’re about finding the most electable folks, based on fundraising ability, campaign skill and popular appeal — including having the “right” name.