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In the wake of the Caperton decision, WHYY’s Chris Satullo criticizes Pennsylvania’s judicial election system:

Here’s what electing judges does. It forces them to beg campaign cash from the very people who would appear before them in court. It forces voters to choose from clogged slates of unknown names. Not surprisingly, those voters fall back on dumb factors such as ballot position, ethnic surnames and who bought the most TV ads.

Judicial elections have become costly showdowns between corporate and union lobbies, with clueless voters in the crossfire.

Satullo concedes Merit Selection is preferable, but he also seeks a way to improve judicial elections.  His proposal is to use a Merit Selection commission to preclear candidates, and only those deemed qualified would then be eligible to run for election.  In addition to publicizing the commission’s findings, Satullo would require that the candidates’ campaign donors also be made public.

Satullo’s proposal may help ensure that only qualified candidates reach the bench and that the public knows more about the candidates running, but it does not solve the problems caused when money and judicial campaigns mix.  Candidates would still need to raise money, and much of the money would still come from lawyers and entities that appear frequently in the state courts.  Satullo’s requirement that donors be publicly identified does not solve the problem: that information is publicly available now and its availability is not reducing the public’s perception that campaign contributions may have an unacceptable influence on later judicial decision-making.

We agree with Satullo that change is needed, but we find Merit Selection, a hybrid combining the best parts of appointment and elective systems and adding the first-level citizens-based screening commission, is the better solution.  As Satullo says: “It’s a hybrid. And, as everybody knows, hybrids run cleaner and offer better mileage.”

This past weekend, the American Constitution Society held its annual conference in Washington D.C.  One of the panels addressed the United States Supreme Court’s decision in Caperton and its impact on states that elect judges.

According to the Blog of the Legal Times and Gavel Grab, the participants did not reach consensus on the best way to select judges, but we’re persuaded by a comment made by Rebecca Kourlis, former Colorado Supreme Court Justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver.  Responding to Justice At Stake’s Bert Brandenburg explaining that after Caperton “the problem then becomes how much is too much for a judge to accept and still hear a case,”  Judge Kourlis argued:

[E]ven asking that question is “unseemly.” By asking what the threshold is, she said, people are saying there is an amount that is acceptable. ” Any time money is in the courtroom, you’re going to have the perception that it is affecting the judge’s decision.”

Judge Kourlis advocates a Merit Selection system as the answer.  We agree with her: the only way to solve the problems caused by money in judicial elections is to get judges out of the fundraising business.

An editorial in the News & Record of Greensboro, North Carolina examines the Caperton decision and how it impacts a state like North Carolina that uses a system of public financing for its judicial elections:

Although most statewide judicial candidates participate in a public campaign financing system, that’s not a safeguard against big-money influence. Blankenship contributed only $1,000 directly to Benjamin’s campaign. He gave $3 million for so-called independent expenditures on Benjamin’s behalf. The same thing could happen in North Carolina.

The editorial contends that the problem stems from the system of electing judges.   John Martin, chief judge of the N.C. Court of Appeals and chairman of the Judicial Standards Commission, concurs.  According to Judge Martin, “‘The real problem is the election of judges.’”

Following Judge Martin’s lead, the editorial argues:

[Judge Martin is] right. Political donors influence governors, legislators and other elected officials. Judges are expected to act with greater impartiality, and they should be challenged when there are reasonable questions. But money impacts elections, and judges may not be blind to where it comes from.

As long as North Carolina holds judicial elections, it may create opportunities for situations like the West Virginia case.

We agree completely.  Elections will always cost money — even when a viable public financing system is in place.  The answer is to get judges out of the fundraising business.  Merit Selection is the way to accomplish this.

The calls for judicial selection reform in Pennsylvania in the wake of the Caperton decision continue.  This week, the York Daily Record and the Lebanon Daily News joined the call for Merit Selection:

[W]hy do we hold elections for [appellate court judges]. . . .

It’s a good question — one we have been asking in this space for years. We agree with reformers [who] have been suggesting we move to “merit selection” of judges.

The editorials argue that the Caperton decision should convince previously reluctant legislators to support Merit Selection:

[T]he U.S. Supreme Court recently provided the perfect “excuse”: The high court ruled in a West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats.

If Pennsylvania used a merit selection process — as proposed in recently introduced legislation — we wouldn’t have to worry about running afoul of that ruling and judges wouldn’t have to try to figure out whether a $50 donation requires recusal.

Good point — Merit Selection takes judges out of the fundraising business and eliminates concerns that a judge may feel “indebted” to a party or lawyer who helped finance the judge’s campaign.  We hope Pennsylvanians will recognize that Merit Selection is the solution.

An editorial in the Austin American-Statesman minces no words in pointing out a major problem caused by electing judges:

Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .

[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”

How do you do that when you have to raise money. . . to run for judge in Texas?

This is a good question, and it’s one we all should be asking in Pennsylvania.  Of course, the answer to that question raises another pressing question:  if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?

The editorial notes that there is something we can do:

The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.

“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”

And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.

Voters in Pennsylvania can do something, too.  Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business.  We can only amend the constitution if the legislature twice passes the amendment and the public votes for it.  So, there is something we can do.  Let’s do it.

In a letter to the Philadelphia Inquirer, Philadelphia Bar Association Chancellor Sayde Ladov reaffirms the Philadelphia Bar Association’s long-standing support for Merit Selection.  Noting the Caperton decision and the recent Merit Selection legislation introduced into the Pennsylvania legislature, Chancellor Ladov explains:

With the U.S. Supreme Court bringing more attention to this issue, we must work to ensure that candidates seeking a seat on our state benches are the most qualified, not the most financially or politically connected.

We whole-heartedly agree and are pleased that the Philadelphia Bar Association stands with us in calling for Merit Selection as the solution.

An article in the Pittsburgh Tribune-Review explores how the Caperton decision is motivating discussion and dialouge in Pennsylvania.  According to Pennsylvania Chief Justice Ronald Castille , the decision “raises questions for an elected judiciary.”  He noted that Pennsylvania judgesand justices will need to explore whether recusal rules need to be rewritten.

But the issues go deeper than that.  People in Pennsylvania are seriously talking about bigger changes, incuding changing the way we select appellate court judges.  PMC Executive Director Lynn Marks explained, “‘[The Caperton decision] puts the issue of merit selection squarely on the radar screen of important issues for Pennsylvania to tackle.’”

State Representative Matt Smith, sponsor of the recently introduced Merit Selection legislation, concurred and noted that the United States’ Supreme Court’s Caperton decision is making some legislators turn to Merit Selection as the answer: “‘Even people who said as recently as a year ago they opposed this, now those folks see the need to eliminate money and politics from the process.’”  The best way to do that is Merit Selection.

The Harrisburg Patriot-News is urging Pennsylvania to choose Merit Selection. An editorial inspired by the Caperton decision and the recent introduction of legislation that would implement Merit Selection for the appellate courts argues:

The egregious West Virginia case is the kind of scenario that opponents of our current system of electing judges have warned against for years. When candidates are forced to raise so much money for a judge seat, it is difficult for them not to find themselves rendering decisions involving some of their contributors.

Studies show that much of the money raised for judges is contributed by lawyers and in Pennsylvania there are no restrictions on judges presiding over cases involving those who contribute to their campaigns.

This is a serious problem. If nothing else, it provides the basis for a public perception of bias. And the fact that those who want to sit impartially on our state’s highest courts are raising money through one of the two major political parties — after getting that party’s endorsement — is just wrong.

The editorial poses Merit Selection as the solution and goes on to describe the recently introduced legislation.  The editorial concludes that the Caperton case is “s a warning sign of what could happen here.”

Two major Pennsylvania newspapers today featured editorials inspired by the Caperton decision, and both argued for replacing judicial elections with Merit Selection.  The Philadelphia Inquirer offers this stinging assessment of judicial elections:

The river of money that sloshes through campaigns to elect judges in Pennsylvania and Philadelphia has long raised questions about the quality of justice and one’s ability to remain impartial – especially when a big donor is party to a case. . . .

The whole process stinks and does little to bolster the quality of judges, while undermining public confidence in the judiciary.

That’s why the Supreme Court decision offers the best justification yet to reform the way Pennsylvanians select judges.

The Pittsburgh Post-Gazette’s editorial is equally critical of judicial elections:

The final note of depression is that this case flows from a system that makes no real sense and shows no sign of changing — the election of judges. As long as money is exchanged to support judicial candidates, the potential for bias will be there, no matter how little or extraordinary the sum.

This is a key point: even in cases involving parties or attorneys who made less eye-popping contributions to the judge’s campaign, the potential exists for bias or at least the perception that the playing field is not level.  No one should be worrying in court whether the opposing party or counsel contributed to the judge’s campaign.  The solution is clear: Merit Selection gets judges out of the fundraising business.

Not surprisingly, there’s been a lot written about the United States Supreme Court’s decision this week in Caperton. The Philadelphia Inquirer has written several articles focused on the decision, and its impact on Pennsylvania, including the views of those who believe Merit Selection is the answer.  As Rob Beyer, a former Pennsylvania judge, explained:

‘The Supreme Court’s Caperton decision is a narrow ruling concerning an extreme situation, but it highlights the fundamental inconsistency between selecting judges in partisan elections and the principle, required by constitutional due process, that judges not only must be impartial, but must maintain an appearance of impartiality.’

Beyer explained that he was hopeful that the decision would generate support for the adoption of Merit Selection in Pennsylvania.

The New York Times’ report on the decision can be found here; today’s article focuses on the probable impact of the decision.  The Times’ editorial on the decision concludes:

Chief Justice Roberts is fond of likening a judge’s role to that of a baseball umpire. It is hard to imagine that professional baseball or its fans would trust the fairness of an umpire who accepted $3 million from one of the teams.

Our friends at Gavel Grab offer extensive coverage of the decision as well as important analysis.