Aug 26 2008

A Letter That Didn’t Make It Into the Wall Street Journal

Published by under Judges,Merit Selection,Opinion

Last week, we wrote about the Wall Street Journal’s August 14th editorial criticizing Merit Selection. Although the Journal did publish several letters in response (including letters from the American Bar Association and Justice At Stake), unfortunately the letter submitted by PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach was not among them. Therefore, we are publishing it here:


Your editorial “The ABA Plots a Judicial Coup” (August 14, 2008) mischaracterizes merit selection systems and pointedly ignores how successful merit selection has been on the state level in avoiding the many infirmities of elective systems. We write to clarify the benefits of merit selection at the state level, without taking a position on the American Bar Association’s proposal regarding the federal judicial appointment process.

Many judges will tell you they abhor having to raise money to run in judicial elections — with the money coming from the very same lawyers, organizations and special interest groups that may later appear before them. Polls understandably demonstrate the terrible public perception that results from this fundraising, but elections require money and judges have little choice. Many who would make good judges refuse to participate in the process for just this reason. Moreover, it is difficult for the voters to find relevant information about the candidates who are running for the appellate bench. It just doesn’t make sense to use the electoral system to select appellate judges.

Your broad-brush criticism of merit selection systems suggests that you actually would prefer a system that puts on the bench only judges of certain political and philosophical leanings – provided that they lean the right way. This isn’t democratic or populist – it’s seeking a system that can best be manipulated by powerful political interests on either side. Merit selection is designed to get the most highly qualified, fair and impartial judges on the bench, not just judges from one side of the political spectrum. In fact, judges should not owe an allegiance to any political party or constituency. Their sole fealty should be to the law.

Many states that use merit selection include lawyers and nonlawyers on their nominating commissions. In fact, under a proposal being considered in the Pennsylvania state legislature, doctors, fire fighters, teachers, used car salesmen and others would have an opportunity to serve on the nominating commission. This provision for “public members” or regular folks demonstrates an appreciation for the important perspective nonlawyers bring to the process of examining candidates for the bench.

Finally, you neglect to report that the efforts to “undo” merit selection are facing great opposition in Tennessee, Missouri and Kansas. Once states or counties eliminate expensive and divisive partisan elections for judges, they are loath to turn back. Merit selection works at the state level and that is why we are seeking to bring merit selection to the statewide appellate courts of Pennsylvania.

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4 responses so far

Aug 19 2008

Merit Selection — A Fair Process that Brings Us Good Judges

Merit Selection is a favorite target of those who worry that a process that removes money from judicial selection and weakens the role of political parties will keep the critics’ preferred candidates from reaching the bench. And once again, the Wall Street Journal criticizes Merit Selection in a thinly veiled call for more politically conservative judges to staff our federal and state courts.

PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach submitted a letter to the editor in response, arguing that the editorial mischaracterizes Merit Selection and ignores how successful it has been at the state level. (We are waiting to see whether the letter will be published before posting the full text.)

Merit Selection is designed to get the most highly qualified, fair and impartial judges on the bench, not to pack the courts with devotees of a particular political or philosophical leaning. While claiming to be supporters of judicial accountability, critics of Merit Selection often are simply concerned that their preferred candidates won’t make it through the process. That doesn’t seem to us to be a good reason to oppose a system that gets judges out of the fundraising business, emphasizes qualifications, skill and experience and results in judiciaries that reflect the diversity of the states from which they are drawn.

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Our friends at Gavel Grab offer their thoughts on the editorial, wisely asking, ” Leaving aside the editorial’s many factual errors. . . the real question is this: what is so wrong with getting community input before nominating new judges?” The answer, of course, is that nothing is wrong with that, as the many successful state Merit Selection systems demonstrate. We hope Pennsylvania soon will join their number and implement Merit Selection for the appellate courts.

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One response so far

May 07 2008

Leaders of PMC and PMCAction Take on Merit Selection Opponent

In a joint letter to the Philadelphia Daily News, PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach respond to a critic of Merit Selection. In an earlier post, we pointed out the critic’s fundamental misunderstanding of Merit Selection and unreasonable fear of letting the voters decide the best way to choose appellate judges. In their letter, our leaders neatly sum up the problem: “[The critic] does not understand what so many voters know: Judges are different.”

Heim and Fiebach point out that judges have different responsibilities than other public officials. Politicians

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are expected to make promises to constituents and campaign donors. At election time, those promises – kept or not – often decide their political fate. By contrast, judges “are sworn to uphold the law in an even-handed manner without regard to personal belief, political pressure, popular will, or the preferences of campaign donors.”

“How can we expect judges to campaign like other elected officials and then, when they take the bench, expect that the public will view them differently? No wonder this system breeds a lack of public confidence.”

Our leaders close with a reminder that Merit Selection advocates want to give the people a chance to decide the best way to select appellate court judges. Critics of Merit Selection seem very worried about letting the voters make this decision. Why is that?

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