judgesonmerit.org

In the most recent edition of the Duquesne Law Review, Pennsylvanians For Modern Courts makes the case that partisan election of judges “creates special challenges to the ability of judges to achieve and maintain judicial independence.” Deputy Director Shira J. Goodman, Executive Director Lynn A. Marks, and pro bono attorney David Caroline collaborated on the article, titled “What’s More Important: Choosing Judges or Judicial Independence?” Citing academic research and public opinion polls, they argue that campaign contributions and political partisanship make it almost impossible for elected judges to serve without fearing accusations of bias. And recent loosening of campaign finance regulations will only exacerbate the problem in the future.

Readers with access to HeinOnline can read the complete article using the citation 48 Duq. L. Rev. 859.

The perennial fight over selection of appellate judges in Tennessee is back on, according to an opinion piece published in The Tennessean on 1/30. In “Judge-selection system in state instills trust,” Dwight Lewis explains how the state’s Merit Selection system works, and notes support for the plan from former Tennessee Supreme Court justice, and newly inaugurated governor Bill Haslam. Haslam cites his own experiences on the campaign trail as a reason for supporting the current system, saying “[a]s somebody who has spent two years going across the state campaigning, I’m just not sure we want our Supreme Court judges to do that.”

A 1/27 piece by Nashville Scene’s Jeff Woods states the problems with judicial elections even more bluntly. “Conservatives want judges to sing for their supper and submit to contested elections — but will that pimp out the bench?” After a sharp critique of both sides of the argument, Woods concludes that the political reality doesn’t bode well for a change in Tennessee. At least not yet.

For this session anyway, the most likely outcome probably is none at all. The Tennessee Chamber of Commerce already is talking about the need to send the whole argument to a summer study committee — a favorite water-treading tactic. Lawmakers will have to make a decision by 2012, when the current law expires. Who knows — a few Christmases from now, you might be able to buy someone a judge.

Woods’ turn of phrase eloquently captures the issues facing elected appellate judges here in Pennsylvania. Our appellate judges and justices are, in essence, required to “sing for their supper” by campaigning for votes, wooing political parties and collecting campaign donations. Any time they rule on a case involving a political ally or campaign donor, they’re left open to accusations that they’ve decided to “pimp out the bench.”

That’s why we’re asking our state legislators, and the people of Pennsylvania, to support the switch to Merit Selection of appellate judges, and why we’re rooting for Tennessee to leave its Merit Selection plan intact. We’ll certainly be keeping an eye on this ongoing debate.

Some friends in the corporate world share our concerns about the role of money in judicial elections. Merck VP, Charles R. Grezlak, told the Center for Political Accountability, a nonprofit group working towards greater transparency in political spending, that the pharmaceutical company would no longer make donations to state supreme court candidates.

Merck’s decision came partly in response to the recent U.S. Supreme Court ruling in Caperton v. Massey. Writing for the majority, Justice Kennedy said:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In spite of the Court’s strong warning that campaign contributions may jeopardize a litigant’s right to a fair trial, judicial fundraising is a necessary evil in states that continue to elect their judges through partisan elections.

Merck’s decision to remove itself from this politicized arena is a welcomed step in the direction of greater judicial accountability. Merck’s leadership on this issue may encourage other major companies to follow suit by extracting themselves from the money game as well. Businesses, as well as all other potential litigants, should not feel pressured to compete for justice with their checkbooks.

In Pennsylvania, campaign spending on judicial elections has skyrocketed. Notable (and notorious) was this year’s Supreme Court election in which the two candidates raised well over three million dollars combined. Pennsylvanians need to take a hard look at where all this money is coming from and how it is impacting the fairness of our courts.

The Star News of Wilmington, North Carolina reports that Superior Court (trial level court in North Carolina) Judge Jay Hockenbury will run for reelection next year but will not accept campaign contributions:

The judge, a 61-year-old Republican in a mostly Democratic district, said contributions from attorneys, developers or others with special interests could give the impression of influence over a judicial decision. Hockenbury said it’s never been an issue, nor does he want it to be.

Although the judge did raise money in his previous campaigns, he has decided not to this time around.  It’s interesting to note that in his initial election, Judge Hockenbury raised about $22,000.  So, we’re not talking about Caperton-size contributions here.  But still, the judge recognized that the role of money in judicial elections creates dangerous perceptions.

Judge Hockenbury has chosen one solution to the problem of money in judicial elections. But we think a broader, systemic solution that would get judges out of the fundraising business altogether would be even better.

The hot topic in Pennsylvania is the effect of contributions to judicial campaigns. Two papers ran features on the issue this weekend.  The Wilkesbarre Times-Leader posed this question:

Two lawyers appear in court. One donated thousands to the judge’s campaign and the other gave nothing. Will they be treated the same?

Absolutely, say five of the seven elected Luzerne County judges who accepted campaign donations from lawyers.

But getting people to believe that is a problem, said Shira Goodman [of PMC].

The Times-Leader interviewed several sitting judges about campaing contributions from lawyers and law firms.  Although the judges explained that the contributions do not influence their decision-making in the court room, they acknowledged that as elections become more expensive and as public hostility to lawyers grows, things might have to change.  Judge Thomas Burke explained that those changes might include Merit Selection:

“If we reach the point where the perception is that lawyer contributions – or any outside contributions to judicial campaigns – pose an unfair advantage that will tilt the level playing field in favor of one side or another, then we likely have to consider alternatives to the present system.”

The Pittsburgh Tribune-Review also examined the perception created by contributions to judicial campaigns.  According to Chief Justice Ronald Castille:

“It’s not a healthy situation. . . . I’ve seen those polls where the public thinks campaign contributions affect judges. It’s not healthy for the system. We want people to have confidence in the system.”

The article explained that there are no rules that outright prohibit a judge from hearing a case in which a lawyer or party contributed to the campaign.  PMC Executive Director Lynn Marks explained that this causes a fundamental problem: “When you go to court, you shouldn’t be worried whether your lawyer gave a campaign contribution.”

It is time to get judges out of the fundraising business.  Merit Selection can accomplish this. Chief Justice Castille favors Merit Selection.  It’s time to let the people of Pennsylvania weigh in.

Our partners at Justice At Stake commissioned a survey about the public’s attitudes towards the influence of campaign contributions on judicial decision-making , and guess what they found:  “An overwhelming percentage of U.S. adults believes that judges cannot be completely impartial and should not participate in cases that involve large campaign contributors.” As reported on Gavel Grab and in Justice At Stake’s press release, 81% of those surveyed also believe that judges should not be making their own decisions about recusing in such cases but instead should abide by the decision of another judge.

Reflecting on the poll results, Justice At Stake Executive Director Bert Brandenburg explained:

Americans overwhelmingly believe that campaign cash has no place in the courtroom. . . . They are very skeptical that a judge can be impartial when one side has spent big dollars to help put them on the bench.

As Pennsylvania’s judicial election season heats up, we should be asking ourselves why we continue to put would-be judges in the position of funding their campaigns with contributions from parties and lawyers likely to appear before them in court.  Why do we tolerate a system that undermines confidence that justice will be meted out impartially? It’s time for a change.  We need to get judges out of the fundraising business. Merit Selection can do that.

Our friends at Gavel Grab have a very interesting post about the recent decision of a federal court judge striking down various restrictions on the conduct of judicial candidates in Wisconsin.  In short, “State judges can now join political parties, endorse political candidates, and seek  campaign contributions. . . .”  The decision of U.S. District Judge Barbara Crabb in Siefert v. Alexander can be found here.

An article in the Milwaukee Journal Sentinel focuses on the rule allowing candidates to join political parties, but we’d like to discuss the rule change that will now allow judicial candidates to personally solicit campaign contributions.  Pennsylvania has a rule in place similar to the one struck down in Wisconsin that prohibits judicial candidates from personally soliciting campaign funds.  Instead, they must create campaign committees to handle the fundraising.  But Judge Crabb points out that the use of campaign committees does not solve the problems inherent in fundraising for judicial elections:

Defendants may mean to say that a campaign solicitation from a judicial candidate is more coercive because of the possibility that the potential donor will find herself in that candidate’s court after he is elected.  If that is so, defendants give no reason to believe that the problem is solved by the use of campaign committees.  As plaintiff and other courts have pointed out, a campaign committee does not stop a candidate from discovering who donated and who did not, rendering illusory any belief by the potential donor that he is freer to say no to the committee than the candidate himself.

Judge Crabb also rejected the argument that using campaign committees for fundraising helps increase public confidence:

To the extent judicial fundraising undermines confidence in the judiciary, it is a result of judges’ deciding cases involving those to whom a judge is financially indebted and may be again at the next election cycle.  Neither defendants nor the cases they cite identify any reason to believe that voters are less suspicious of such a relationship simply because the contribution request is signed by the committee chairman rather than the candidate.

In Wisconsin, judicial elections will not look more like elections for other public offices.  But for a position that’s so different from that of other public officials, perhaps it’s time to explore making the selection process for judges totally different.  It’s time to stop electing judges.

In a front-page article about the Supreme Court case of Caperton v. Massey, USA Today presents sobering statistics about the public’s perception of the effect of campaign contributions in judicial elections:

A USA TODAY/Gallup Poll this month found 89% of those surveyed believe the influence of campaign contributions on judges’ rulings is a problem, and 52% deem it a “major” problem. More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge’s election campaign.

Recusal — when a judge removes him or herself from a case — is the big question the United States Supreme Court must tackle.  But we think these survey results raise a bigger question: why are we choosing judges through expensive elections that require such contributions in the first place.  There is a better way: Merit Selection.

The fact that the United States Supreme Court has decided to hear Caperton v. Massey — the West Virginia case involving campaign contributors and recusal of judges — is of course big news to lawyers and judges.  But it’s also important to members of the public who come to the courts to settle disputes.  Here’s what Hugh Caperton, plaintiff in the case, told The Charleston Gazette about the issue of campaign contributions:

“In this country, money has begun to pervade and permeate every election that’s held. And I agree that it’s the right of each citizen to support their candidate. But you can’t have Supreme Court seats being propped up by millions of dollars from one individual or group,” he said. “It makes the appearance of impropriety so great that normal citizens like myself lose faith in the judicial system.”

Our justice system is based on the public’s trust and confidence that the judges will follow the law and apply it to the facts presented.  When people worry that campaign contributions might influence a judge’s decisions, that confidence is undermined.  We can’t afford that.

In a report about the current judicial elections in Alabama, The Press-Register notes:

With millions of dollars coursing into the campaign coffers of candidates for Alabama’s appellate courts, an age-old question has resurfaced: What should judges do to remove doubt about their impartiality?

It’s not just reform groups and the public who are concerned about the influence of money in judicial elections. The report explains that some judicial candidates and bar association leaders also believe that steps should be taken to eliminate the perception — and perhaps the reality — that campaign money can affect judicial decision-making.

Some of these folks are talking about whether recusal should be mandated in cases involving campaign donors.  This isn’t a new issue and it’s not unique to Alabama — we’re still waiting to hear whether the United States Supreme Court will take up the West Virginia case of Caperton v. Massey which poses similar questions.

This is just another example demonstrating why money and selecting appellate judges shouldn’t mix.