judgesonmerit.org

Critics of Merit Selection like to conjure up visions of a shadowy cabal of lawyers, meeting in a smoke-filled room to decide who has the right political leanings to be a judge. In reality, the people who serve on judicial nominating commissions are usually thoughtful men and women, lawyers and nonlawyers, who view the task of recommending qualified judicial candidates as an important civic duty.

Florida’s Judicial Nominating Commission is preparing this week to interview 49 candidates for two vacancies on that state’s supreme court. In an article about the work involved, members of the commission talk about how much time and effort they invest in the process.

Commission Chair Bob Hackleman calls the job “a grave responsibility,” and stresses the “need to be thorough.” Commission member Arturo Alvarez gives this perspective:

I really believe in the merit-selection process. It’s much like sitting on a jury. We actually say to ourselves, ‘My God, this is an important thing.’ Me, as a trial lawyer, I know the power a single judge can have over things.

We’re glad that the members of the Florida Judicial Nominating Commission take their responsibilities so seriously. We hope their work goes smoothly, and we hope that critics of Merit Selection will think of them before being impugning the motives of men and women serving their states with pride.

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?

As the campaign for Merit Selection progresses, we hear some inaccurate arguments repeated by those who oppose Merit Selection. In an effort to set the record straight, we’ll reveal the truth and clear up these myths.

Myth #1: Merit Selection is Taking Away My Right to Vote for Judges

No one can take away your right to vote. We can only get a Merit Selection system for the appellate courts if the people of Pennsylvania vote for it. This is not something the legislature or Governor can impose on the people. Instead, the people have to vote for it in a referendum.

Additionally, Merit Selection gives the people the ultimate decision about whether a judge stays on the bench. After a judge’s initial four years on the bench, the public votes on whether the judge should be retained. If the judge wins retention, he or she will stand for retention before the public every ten years.

Myth #2: Merit Selection Means a Bunch of Lawyers Will Be Picking Our Appellate Judges

The appellate court nominating commission will be made up of lawyers and non-lawyers. Five public members are appointed by civic groups, unions, business organizations, non-lawyer professional associations, and public safety organizations. These groups can appoint anyone of their choosing — no lawyers required. Also, the Governor is required to include two non-lawyers in his appointments.

There will be a law school dean on the nominating commission, and some lawyers appointed by the Governor and the legislative leaders. But it’s a mix, and like other commissions that currently exist, the non-lawyers will bring a valuable perspective to the screening and evaluation of judicial candidates.

Keep visiting JudgesOnMerit.org to learn the truth about Merit Selection.

On Friday, April 4th, Dan Pero of AmericanCourthouse.com posted two items critical of our perspective on judicial selection of appellate judges in Pennsylvania. We’ve said all along that reasonable people can disagree about judicial selection. We started this blog to encourage discussion about the subject, and we’re gratified that Mr. Pero believes the issue to be important. However, we wish he would stop trying to mislead his readers.

In his swipes at Merit Selection, Mr. Pero returns again and again to the same hollow argument. He insists there is a conspiracy afoot to “take away” the right of the citizens of Pennsylvania to vote for appellate judges.

No matter how many times Mr. Pero and other critics of Merit Selection repeat this mantra, no one can take away the current elective system from the citizens of Pennsylvania. The state Constitution can only be amended after the voters pass a referendum to authorize the change. Like other Merit Selection critics, Mr. Pero ignores this fact.

We can only adopt a Merit Selection system for Pennsylvania’s appellate judges if the people of Pennsylvania vote for it. The only thing we want to “take away” from the people is the false impression that anyone can implement Merit Selection in Pennsylvania without popular consent.

There’s been a lot of chatter about a recent editorial in the Wall Street Journal criticizing those calling for Merit Selection of state judges. The editorial opened with a discussion of John Grisham’s new novel The Appeal, a story about a big corporation trying to influence the outcome of a case by contributing to a judicial election campaign. In response to Grisham’s comments that the novel was being played out in real life examples throughout the country, the editorial moved on to attack Merit Selection.

The editorial asserted: “In a result that might surprise Mr. Grisham, a 2007 Harvard study actually found that judges who are elected directly by voters are overall less corrupt than those who win their robes through other methods of selection.” This is a blatant mischaracterization of both the focus and the conclusions of the 2007 Harvard study.

The study, conducted by James Alt and David Lassen, focused on government corruption. It addressed whether the way judges are picked affects the ability of the judiciary to thwart corruption by the other branches of government. The study did not address judicial corruption, and it certainly didn’t reach conclusions about whether the way judges are selected affects levels of corruption in the judiciary.

The author of the editorial twisted the results of the study to serve her purpose of attacking those who support Merit Selection. In doing so, she misled the readers of the Wall Street Journal.

The facts about the Harvard study were presented to the Wall Street Journal in a letter to the editor authored by Lynn Marks of PMC and PMCAction and Seth Andersen of the American Judicature Society. However, this letter has not (at least as yet) been printed by the Journal.

Reasonable people can and do disagree about how judges should be selected. But reasonable people should make their decisions based on the facts. We trust the people of Pennsylvania to do just that and to vote on whether to change the way we select our appellate judges. What are the critics of Merit Selection so afraid of?

We think Merit Selection is the best way to choose appellate judges, and we think it would be a good system for Pennsylvania. But we don’t want to impose a Merit Selection system on the people. We want to present the proposal to the voters of Pennsylvania, and let them decide.

Critics like to accuse Merit Selection supporters of trying to “take away [the] right to vote for judges.” It’s a scare tactic, and it ignores reality. No one wants to take anything away from the public, and no one can change the way we pick appellate judges unless the people of Pennsylvania vote to do so.

Changing the way Pennsylvania selects appellate judges requires an amendment to the state constitution. No amount of legislative action or advocacy by Merit Selection supporters can make that happen. The only way to amend the state constitution is to let the people vote in a public referendum, a yes or no vote on whether or not to change the way we pick appellate judges.

That is what the current Merit Selection campaign is aiming for. We are ready to put this issue to the ultimate test, by giving the voters their chance to decide.

It’s also telling that opponents of Merit Selection fail to notice the retention election component of the proposal. Every appellate judge appointed under the plan will face a statewide retention vote after four years on the bench. If the judge is retained, he or she will serve for a 10 year term, with another retention election at the end of each term.

The retention election component preserves the right of the the people to observe each judge in action, and to decide whether that judge should stay on the bench. The public voice, and the public vote, will still be important to the process under Merit Selection.

We understand that changing the way a branch of government is chosen is a serious matter. This is even more true when it involves moving away from a purely electoral system. But don’t be fooled. Only the voters of Pennsylvania can make this change happen. No one can take away the elective system, and no one can force Merit Selection on the people. The people have to vote for it.

We are not afraid to let the people vote and decide this critical issue. We think it’s time for the people to determine whether our current system is working or if there’s a better way.