judgesonmerit.org

Something interesting is happening in Tennessee – where the Merit Selection system for choosing judges is again under fire.  The Times Free Press reports (hat tip to American Courthouse) that two sitting Supreme Court justices contributed to the Senate campaign of the opponent of a state representative who was vocal about wanting to change the judicial selection system.  The contributions were legal in Tennessee.  They wouldn’t have been in PA, which allows judges to make political contributions only when they are engaged in an election themselves (See Canon 7).

Frequent Merit Selection critic Dan Pero asks why these contributions aren’t drawing the same fire as contributions to judicial campaigns:  “Why is there a perception that it’s impossible for judges to remain fair and impartial if they accept a campaign contribution, but no reasonable concern about bias is [sic] they make a contribution themselves?”

Perhaps surprising to Mr. Pero, we are very concerned about this.  Judges should of course have the right to vote like all other citizens, but judges do give up certain rights when they take the bench – this should include overt political or financial support in elections.

Judges should not be in the business of raising or making political contributions.  Even the Pennsylvania restrictions on judicial contributions do not go far enough – money and politics should stay out of the courtroom. They best way to accomplish that is to keep judges out of the electoral system – whether as candidates or political supporters.

We frequently acknowledge that reasonable people can disagree about the best way to select appellate court judges.  We believe it’s time to have a full, open dialogue in Pennsylvania about whether we should change how we pick our appellate judges.  We want that to include a public referendum on the question.  And that’s why we’re working within the constitutional amendment process to pursue the reform we believe is needed.

We understand that people have strong opinions about these issues.  And we welcome impassioned debate.  But we’re tired of opponents of Merit Selection attacking us and the Merit Selection process on false premises.  It happened again yesterday.  American Courthouse accused us of wanting to change to Merit Selection so we can get a certain kind of judge on the bench.  That’s simply not true.

We have never criticized or praised any judge for his or her judicial philosophy or decisions.  We have never advocated the election or defeat of any judicial candidate.  We have always focused on the problems with the electoral system — the skyrocketing campaign contributions from lawyers, law firms and organizations that litigate in the state courts, the lack of required qualifications to serve on the appellate courts, the lack of diversity on our appellate courts, the influence of random factors like ballot position affecting election outcomes, and voters’ inability to access relevant information about the candidates.  These are the reasons we want to change the way we pick our appellate court judges.

So, disagree with us if you must, but get our position right when you do.

It’s interesting how Merit Selection opponents trot out the same tired arguments every time there seems to be some progress in the effort to let the people weigh in on the question of how we should choose appellate judges. Dan Pero, over at American Courthouse, echoes these same refrains in his most recent post about Pennsylvania.

Let’s set the record straight. Merit Selection supporters trust the voters to make important decisions. That’s why we want the legislature to give them the opportunity to decide whether or not to change the way we pick appellate court judges.

It’s been 40 years since this issue went before the people. In that time, elections have become increasingly expensive and partisan. Public confidence in the judiciary has declined drastically. We know this is in large part related to the money, which leads us back to the question; why do we choose judges this way?

So, we’re ready to let the people tell us what they think. Merit Selection opponents, however, never want it to get that far. In their minds, the people had a chance 40 years ago and now they’re stuck with it. Who’s afraid to give the people a voice?

We want to use the democratic process to decide a critical question about our system of government. Why are Merit Selection opponents so afraid of that? Is it that they know Merit Selection is a better way to select judges and that the people, if given a chance, would want to try it? That’s the only logical explanation for their unwillingness to let the democratic process take its course.