judgesonmerit.org

Today, the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics released “The New Politics of Judicial Elections, 2009-2010.”  The Report chronicles spending during the 2009-2010 judicial election cycle across the nation, and finds that Pennsylvania’s 2009 Supreme Court race was second in cost only to Michigan.  But for the 2007-2010 period, which encompassed two Supreme Court election cycles in Pennsylvania, Pennsylvania remained “the nation’s costliest state for high court races.” PMC issued a press release with the Justice at Stake Campaign to highlight the Pennsylvania data.

In addition to the Report, Justice at Stake today also released national polling data revealing that 83% of voters believe that campaign contributions in judicial elections have a “great deal” or “some” influence on judicial decisions.  This is consistent with the 2010 Pennsylvania poll (the full poll is available here) that revealed that 75% were concerned about the effects of such contributions. More and more, judicial elections are creating and perpetuating the perception that “justice is for sale.”

The good news is the poll demonstrates public support for solving the problem by changing the way we select judges: 62% favor Merit Selection.  This mirrors the 2010 Pa. poll as well.

Merit Selection legislation is pending in the House and Senate, and it is likely that the House Judiciary Committee will hold a hearing on the legislation in the next few weeks.  We are hopeful that this will move us forward to give Pennsylvanians the opportunity to decide whether to change the way we choose appellate court judges.

Over at Gavel Grab, Peter Hardin notes the growing trend of expensive judicial elections.

This trend is in part due to an increased expenditure on television ads. Referring to information contained in a news release complied by the Brennan Center for Justice and the Justice at Stake Campaign, Hardin explains that television ads are now being used in six states with upcoming judicial elections. Through October 6, more than $2 million has been spent on air time for judicial elections. Another indicator of this spending trend is that Minnesota has seen increased “partisan politicking.” Minnesota has traditionally been a state that avoided expensive Supreme Court elections.

The news release cites Charles Hall, a spokesperson for the Justice at Stake Campaign in Washington as summing up the 2010 judicial campaign season: “The new politics of judicial elections continues to reach states that haven’t experienced it before, and that’s been the story of the 2010 campaign.”

We have long been concerned about the role of money in judicial elections, and as the amount of money involved grows so do the reasons to worry. With more states engaging in expensive judicial elections, the problem is only getting worse. Expensive judicial campaigns create the perception that justice is for sale. Merit selection is a way to take money out of the equation and maintain judicial independence.

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

Today, PMC partners Justice At Stake, the Brennan Center for Justice and the National Institute on Money in State Politics issued a new report analyzing the last decade of judicial elections entitled “The New
Politics of Judicial Elections: 2000-2009.” Pennsylvania is prominently featured in the Report, which examines the explosion in fundraising and spending in these elections as well as the increasing participation of special
interests.

The Report notes that Pennsylvania ranks second in the nation for election spending during the decade.  In addition, Pennsylvania was home to the most expensive Supreme Court election in the nation during the 2007-08
cycle.  In that year, there were two vacancies on the Supreme Court. According to the Report, candidate and third-party spending totaled $10.3 million.  In 2009, as the report notes, the high spending trend continued in Pennsylvania, and we saw the most expensive single seat race in our history.

The Report certainly highlights the increasing importance of cold, hard cash in judicial elections and also reminds us that poll after poll demonstrates that the public — and judges as well — believe that campaign contributions influence judicial decision making.

But there is some cause for optimism.  The Report notes that reform efforts are making progress, and that Merit Selection is gaining ground in states throughout the nation.

The Report presents a cautionary tale — state judicial elections are getting much worse when measured by the factors that affect public confidence: money and special interest participation.  The public wants
fair and impartial courts. Money is widely viewed as a corrupting influence and it undermines the public’s confidence in our courts and judiciary.  There is a clear solution: get money out of the process of
choosing judges. The most effective way to do that is Merit Selection.

Here are the links to the Report:

Full Report

Letter From Justice Sandra Day O’Connor

Executive Summary

State Profiles, 2000-2009

The Brennan Center for Justice at NYU School of Law has published a new article analyzing the negative impact the recent Supreme Court decision Citizens United v. FEC will likely have on state judicial races.  In that case, the Court overturned a long-standing ban prohibiting corporate expenditures in elections.  As a result of the ruling, corporations and unions will now be permitted to spend directly from their coffers to support or oppose candidates for elected office.  These include candidates for state judicial benches.

Buying Justice: The Impact of Citizens United on Judicial Elections, penned by Adam Skaggs, counsel at the Brennan Centers Democracy Program, reviews the recent trends in judicial election spending, surveys several states in which the decision is likely to have the greatest impact, and offers solutions to combat the deleterious effects of the ruling.

Skaggs beings with a telling quote from retired Supreme Court Justice Sandra Day OConnor, a long-time opponent of judicial elections:

If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.

[After Citizens United], we can anticipate labor unions and trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.

Based on numerous polls conducted across the country over the past ten years, it would appear that both the perception and the reality of judicial impartiality were imperiled even before Citizens United.  Skaggs cites a  poll showing that nine out of ten Pennsylvania voters believed large campaign contributions influences judicial decisions. In fact, Skaggs flags Pennsylvania as one state in which current problems with judicial races will only be exacerbated due to the Courts decision:

Before Citizens United, Pennsylvania prohibited corporations from making any contribution or expenditure in connection with the election of any candidate or for any political purpose whatever.  But that has not kept big money out of judicial elections in the Keystone State.  In 2009, Democrat Jack Panella broke a state record for individual fund-raising spending more than $2.6 million dollars but still lost to Republican Joan Orie Melvin.  Orie Melvin challenged Panella over his connections to his campaign supporters, lambasting him for taking $1 million from the Philadelphia Trial Lawyers Association and asking, ‘Is it pay-to-play? Is it justice for sale? I don’t know, but it sure sounds suspect.‘

The report spotlights PMC’s advocacy for a switch to a merit-based system of selection for the states appellate level judges:

Editorial boards across Pennsylvania have echoed the calls to adopt merit selection; in the words of the Philadelphia Inquirer, Pennsylvanians would have more faith in their judiciary without legal scandals and campaign-donor conflicts arising from judicial elections.

The Brennan Center for Justice has released its analysis of television advertising expenditures for the 2008 judicial election cycle, and the numbers are staggering:

Candidates, interest groups, and political parties combined to spend $19,861,269 on television advertisements in state Supreme Court elections nationwide this year. . . . That figure is up 24 percent from 2006, when they spent barely more than $16 million.

Big spenders this year included political parties, which really ramped up their spending from past election cycles: “Democratic and Republican state and local committees combined to spend $2,985,941 on television advertising, compared with only $644,989 in 2006.”

These are trends Pennsylvanians should be aware of as we enter our own judicial election season.  In the past, Pennsylvania has followed national trends of campaign spending, often setting new state records for fundraising and spending.  So, we can expect to see even more television ads come campaign season.

Why should we be concerned about all the money raised and spent for judicial election campaigns?

“The perception of judges as impartial umpires suffers, in particular, when outsized contributions and expenditures to judicial candidates are made by the very parties who then appear before those same candidates, once they are seated on the bench,” said James Sample, counsel at the Brennan Center.

Get ready, Pennsylvania — judicial election season is coming.