judgesonmerit.org

On Monday, the Courts Subcommittee of the House Judiciary Committee held a hearing on the pending Merit Selection legislation.  Representative Josh Shapiro (D, Montgomery) chaired the hearing in Subcommittee Chair Don Walko’s (D, Allegheny) absence. Also attending were Minority Subcommittee Chair Tom Creighton (R, Lancaster), bill sponsor Matt Smith (D, Allegheny), Mike Vereb (R, Montgomery), Joseph Petrarca (D, Armstrong), Kathy Manderino (D, Philadelphia and Montgomery), Kate Harper (R, Montgomery), Glen Grell (R, Cumberland) and Deberah Kula (D, Fayette and Westmoreland).

The hearing was very informative.  Nearly all who testified — both those who supported the legislation and those who opposed it in some way — agreed that there are problems with the current electoral system, notably the role of money in the process.  This consensus is significant and reflects the public’s belief in the corrupting influence of money in the process.

Testifying on behalf of the legislation were PMC and PMCAction’s Bob Heim, Lynn Marks and Shira Goodman; Dave Taylor of the Pennsylvania Manufacturer’s Association; and Charlotte Glauser of the League of Women Voters of PA.  J. Whyatt Mondesire of the NAACP was scheduled to present testimony in support of Merit Selection but was unable to attend.

In the next few days, we will upload copies of the testimony presented at the hearing, but we offer a few highlights.  Bob Heim, Chair of PMC, focused on the need for reform and the importance of getting judges out of the fundraising business. He highlighted the public’s growing concern that money can influence judicial decisionmaking and called on the legislature to allow Pennsylvanians to decide whether to change the way we select appellate court judges.

Charlotte Glauser of the League of Women Voters of PA explained the League’s long standing support for Merit Selection, urging “Passage of these bills will do much to restore the public image of independence of Pennsylvania’s appellate court system.”

PMA’s Dave Taylor explained that Merit Selection would “improve the professionalism, integrity, and independence of the judicial branch of goverment.” Taylor explained:

By combining elements of elective and appointive systems for nominating our appellate court judges, Pennsylvania can uphold the professionalism of the courts and protect our jurists from the conflicts of interest that inevitably arise from political fundraising and campaigning.

Testifying in opposition were Tom Foley III of the Pennsylvania Association for Justice (formerly the Pennsylvania Association of Trial Lawyers), Professor Michael Dimino of Widener University, and Rick Bloomingdale, Secretary Treasuer of the AFL-CIO.  Professor Dimino actually endorsed a Merit Selection for the Superior and Commonwealth Courts and even for the trial level courts, but argued against Merit Selection for the Supreme Court.

Rick Bloomingdale of the AFL-CIO noted the organization’s current opposition to the legislation, but expressed a willingness to support an amended version of a Merit Selection plan. This is significant, and we are hopeful that as the Committee considers the bill, we can work with our traditional partners and with groups such as the AFL-CIO to design the best system of judicial selection for the Pennsylvania appellate courts.

In a publicly released letter to bill sponsor Matt Smith, Governor Rendell again expressed his strong support for Merit Selection:

I have said on many occasions that our system of electing appellate judges makes no sense. It is no secret that there is great concern in Pennsylvania about the role of money in judicial elections. Current law could allow judicial candidates to accept indirect contributions from lawyers and special interest groups that may eventually have to argue a case before that judicial candidate. It is no wonder that Pennsylvanians have been losing faith in our courts and our judges.

PMC and PMCAction are grateful to the House Judiciary Committee and its Subcommittee on Courts for the opportunity to present public testimony at yesterday’s hearing. We thank the bill sponsors, Representatives Smith and Will Gabig (R, Cumberland), for their leadership as well as all the representatives who attended the hearing.  We look forward to working together to achieve a better way for Pennsylvanians to select appellate court judges.

In a guest column for the Times-Tribune in Scranton, PMC Board Chair Bob Heim makes the case for Merit Selection.  Heim begins with a discussion of the U.S. Supreme Court’s decision in Caperton and then offers this insight about the problematic role of money in judicial elections:

There’s no question that, , if one side of a case contributed to a judge’s campaign, the other side will worry. . . .

The presence of money in judicial elections may not violate the Constitution. But it violates our citizenry’s trust in the impartiality of those who sit in judgment.

Heim continues: “There is a simple solution: Get judges out of the fund-raising business by changing the way we choose them.”  He points out that in addition to solving the money problem, Merit Selection focuses on the qualifications of the candidates and ensures that judicial selection would on longer be based on the irrelevant factors that so often have a big influence in judicial elections, like ballot position, county of residence, and fundraising prowess.

Heim concludes by noting that the legislature needs to understand that judicial selection is an important issue to the people of Pennsylvania. He urges: “Let your legislators know you care.”

In an op-ed in the Philadelphia Inquirer, PMC Board Chair Bob Heim explains the impact of the Caperton decision and outlines a solution to the poisonous effect of money on judicial elections:

So what does [Caperton] mean for those of us who don’t have $50 million at stake? A lot.

There’s no question that, regardless of the amount of money involved, if one side of a case contributed to a judge’s campaign, the other side will worry about it.

Some years ago, I was told of a lawyer who was sitting with a client in court, waiting for a newly assigned judge to hear his case. When the judge appeared, the lawyer whispered to his client that he was concerned, because the opposing lawyer was on the judge’s campaign committee and had contributed to the campaign. After a pause, the client whispered back, “So why didn’t you contribute?”

This story, cynical as it may seem, reflects the very real concerns and perceptions created when litigants and lawyers have contributed to the election campaigns of judges who preside over their cases.

Heim argues: “There is a simple solution to the problem of money in judicial elections: Get judges out of the fund-raising business by changing the way we choose them.”  His proposed solution is Merit Selection:

Merit selection would focus on the qualifications of judicial candidates. It would eliminate the unimportant but often decisive factors of the current system, such as ballot position, a “good name,” where one lives, and talent for fund-raising and campaigning. Because merit selection eliminates the need for candidates to win political-party support or raise large sums of money, it would open pathways to the bench for qualified men and women of all races, backgrounds, and experiences.

The op-ed concludes with some thoughts about why Pennsylvania has not yet stopped electing appellate court judges. Heim believes that legislatures who might be swayed on the topic haven’t heard enough from their constituents about this important issue.  But surveys consistently show the public is concerned about money and judges.  Heim urges Pennsylvanians “Let your legislators know you care.”

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.

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.

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.

This week, you can listen to both PMC Chair Bob Heim and PMC/PMCAction Associate Director Shira Goodman talk about Merit Selection with members of the Commonwealth Foundation. You can watch a video of Heim ‘s presentation to the Commonwealth Foundation’s Policy and Principles lunch on May 14. And you can listen to Goodman discussing Merit Selection with Matt Brouillette on his radio program The Box, which aired May 17.

More information on pending legislation can be found here.

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 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?