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In a letter published in the Philadelphia Inquirer, PMC and Justice At Stake argue that when political parties demand “contributions” from sitting judges for support in retention elections, the whole purpose of retention elections has been undermined.  The letter responds to a report that the Philadelphia Democratic Party has requested $10,000 “contributions” from judges standing for retention in exchange for support on election day.

PMC and Justice At Stake explain that retention elections are yes/no, uncontested and nonpartisan and serve to let the public determine whether a judge should remain on the bench.  PMC and Justice at Stake urge that we are all responsible for returning retention elections to their original purpose: “Lawyers, bar associations, civic groups, and those who care about good government and fair courts — including the media — must ensure that retention elections are what they were intended to be: a referendum on the judge’s performance on the bench, not another political contest.”

The letter closes with this strong statement about why we need reform:  “The [Democratic] party’s greedy ‘request’ is a reminder that judges shouldn’t be elected in the first place.  Judges and money should not mix. Politics should stay out of the courtroom.”

In an excellent op-ed piece in yesterday’s Pittsburgh Post-Gazette, PA Supreme Court Justice Debra Todd contends that just as Lady Justice is Nonpartisan, so too are the justices of the Pennsylvania Supreme Court immune from partisan politics when ruling from the bench. We agree with Justice Todd that partisan politics should have no place in a court of justice. We trust, as does Justice Todd, that most judges are able to maintain impartiality in their decisions.

Yet while we share her dismay at the fact that so much attention during the recent election was devoted to the political balance on the bench, and agree this reflects a “fundamental misunderstanding of the judicial branch of government in Pennsylvania,” we think it has even more to do with the way we select judges in our state. If we expect our highest judicial officers to completely separate their political affiliation from their judicial decision-making, why do we elect them in hotly-contested, extravagantly-funded partisan elections?

Although, as Justice Todd says, “vacancies on the courts are filled by judicial elections . . . in 39 other states,” that widely-quoted statistic is misleading as it encompasses all levels of the courts and includes those states that use retention elections.  In fact, Pennsylvania is one of only six states, along with West Virginia, Alabama, Texas, Illinois, and Louisiana, that elects all of its judges, from Supreme Court down, in contested, partisan elections where judges run under party labels.

While we hope that no one party exerts political control of the court, is the public’s perception that political affiliation influences judges not the inevitable outcome of a system in which so many vote for judges strictly along party lines, often by pulling a straight-party lever? One can’t blame the public and the media for assuming the court is a political institution while we continue to select our judges in partisan elections.

Nor should we be surprised that Pennsylvanians “conflate[ ] the election of justices . . . with the role of service as a justice.” Why else would political parties spend millions on getting their candidates into office? The Republican Party, for example, spent untold hundreds of thousands of dollars paying for all of Orie Melvin’s TV commercials. In fact, both parties emphasized the importance of the Supreme Court election to party members because of the upcoming reapportionment of legislative districts.

In the Justice’s own eloquent words:

The statue of Lady Justice, whether displayed as the Greek goddess Themis or the Roman goddess Justitia, is often depicted holding the balanced scales of justice and wearing a blindfold. This depiction of Lady Justice embodies the ideal that justice must be rendered without reference to money, power, fear, favor, identity or political party. As a sitting justice of the Supreme Court of Pennsylvania, I am confident that Lady Justice is neither a card-carrying Republican — nor a Democrat.

Lady Justice is certainly neither a Republican nor a Democrat. But we highly doubt that she got her particular spot on the pantheon of gods in a partisan election. Short of a divine intervention, we think merit selection of appellate judges is a far better alternative to partisan elections if we seek Justice Todd’s ideal of a truly nonpartisan court.

We reported earlier that the Philadelphia Democratic party wanted unified support for its judicial slate this time around.  We also reported that certain ward leaders were not certain they would be able to agree.  Now, the Legal Intelligencer reports on its blog that leaders of the City’s Eighth Ward have agreed to support the party’s endorsed candidates who also received recommended ratings from the Philadelphia Bar Association. Ward co-chairman Gregory Harvey explained the ward’s decision:

[Democratic Party leader Bob] Brady appears willing to tolerate the decision of a ward, which finds the bar association’s recommendations important, to only back the members of the DCC slate who are “recommended,” Harvey said. But ward committee officials did not want to endorse candidates without the City Committee’s backing, since Brady has pushed for a unified citywide ticket without other names. . .

Once again, this situation raises the question of what the electoral system is designed to do.  Unlike Merit Selection, which is designed to get the most qualified, fair and impartial judges on the bench, judicial elections place other considerations first, and qualified candidates reach the bench despite the system, not because of it.  This does not make sense to us.

The Clout column in the Philadelphia Daily News offers an update on a story we reported about the Philadelphia Democratic party’s effort to ensure that its endorsed local judicial candidates receive total party support:

[Party leader Bob] Brady told ward leaders that their committeepeople would carry the party’s endorsed candidates this year or they could forget about Election Day street money.

There’s just one problem: Some ward leaders can’t tell their committeepeople what to do.

“In our ward, committeepeople want to meet the candidates and make a decision after we discuss it,” said Mike Boyle, who heads the 5th Ward, in Center City.

The column identifies a total of five ward leaders who will challenge the party discipline effort.  “Brady said he hopes the independent wards will support the party’s slate. It won’t help that two of the party’s Common Pleas Court candidates, Roxanne Covington and Sharon Williams Losier, were rated “not recommended” by the Philadelphia Bar Association.”

This is what happens when judges run for election like other officials — party politics, political games, street money all play a role in determining who reaches the bench.  That doesn’t make a lot of sense when the ultimate goal — at least in our minds — is to get the most qualified, fair and impartial judges.