judgesonmerit.org

On Monday, a sharply divided Supreme Court voted to strike down the “matching funds” provision of the Arizona Citizens Clean Elections Act. The provision provided additional funding to publicly financed candidates who were outspent by privately financed opponents and special interest groups.

In the opinion, authored by Chief Justice John Roberts, the five justice majority noted that the prospect of triggering additional funding to an opponent could pressure privately financed candidates or independent groups to limit their spending. The Court concluded this was a substantial burden on political speech, and a violation of the First Amendment.

Reactions to the ruling are mixed, and its implications are still being teased out. While the opinion was careful to point out that public financing of election isn’t automatically unconstitutional, it’s clear that this Supreme Court remains extremely skeptical of election reforms that seek to limit the influence of campaign donations on politics, and is likely to strike down any measure that creates a disincentive for a candidate to raise and spend money.

Public financing of judicial elections is certainly a step in the right direction; it allows judicial candidates to campaign free of the pressure to raise campaign funds, and helps fight the public perception that donations could influence judicial decisions. Unfortunately, this ruling undercuts the usefulness of public financing systems. Without a mechanism for matching the expenditures of their opponents, publicly financed candidates face the prospect of simply being outspent, and not being able to compete in elections that are growing ever more expensive and contentious.

Merit Selection solves this problem, by eliminating the need for campaign fundraising, and allowing judges to reach the bench based on their qualifications, their skill, ability and knowledge of the law. That’s the system we support for appellate judges in Pennsylvania, and we hope the voters of Pennsylvania will join us in calling for change.

Incoming president of the N.C. Bar Association, Martin Brinkley, shared with Citizen-Times that halting legislation intended to return NC to a partisan judicial election system is a priority for the NC Bar. In his interview, Brinkley said, “Being a judge shouldn’t have anything to do with politics…It ought to do with deciding cases on the law and the fact. We do not favor going back to the old system.”

The NC Bar’s position is in response to Senate Bill 47, which is expected to be introduced to the House during special session in mid-July. The bill has also raised concerns among voting rights advocates for its provisions limiting the period of early voting and repealing same-day voter registration.  Another controversial provision of the bill outlines procedures for ballot positions ensuring that top spots go to Democrat and Republican backed candidates.

The debate surrounding SB47 highlights many of PMC’s concerns regarding judicial election. The NC Bar rejects the attempt to increase politicization of the judiciary; State Senator Tom Apodaca supports partisan races noting that “every party spends a ton of money” identifying candidates as Democrat or Republican; others decry ballot position gaming and increased obstacles to voting. While we agree that party identification, financial concerns, ballot position, and voter registration obstacles should not play any part in determining our judges, we also believe that merit selection is the better way to avoid these potential pitfalls inherent in judicial elections and achieve a fair, qualified and impartial judiciary.

In a May 26th opinion piece published in the Washington Post, Professor Chris Bonneau makes the argument that elections are the best way to select judges. In the course of dismissing the evidence that judicial elections undermine public confidence in the impartiality and integrity of the judiciary, Bonneau makes an argument that we’ve seen repeated over and over again. He claims that partisan judicial elections are more transparent than Merit Selection.

On its face, this seems likes a logical argument. Voters line up on election day, and choose the person they want to be their judge. But is the election process really as open or transparent as Bonneau claims?

In Pennsylvania, partisan elections mean a primary vote, to decide which candidate will represent each party in the general election. It’s relatively rare for a judicial candidate at any level to win a primary election without the endorsement of a political party. The party endorsement conveys an automatic advantage, both in terms of fundraising and political capital.

The thing is, political parties aren’t required to disclose anything about how or why they choose the candidates they endorse. As we pointed out at the beginning of this year’s judicial primary race, these huge swaths of the partisan, political election system are completely opaque to voters. The public gets little, if any insight into the process. The only safe assumption is that the stated goals of the candidate (who’s running for a position that requires impartiality and independence) match up with the political positions of the party. The other thing that the process reveals about a judicial candidate who’s endorsed by a party is that the party believes the candidate has the campaign savvy and fundraising prowess necessary to get elected.

In this year’s Democratic primary for a seat on the Superior Court, Common Pleas Judge David Wecht ran unopposed. Voters didn’t even have the option of choosing an unendorsed candidate. We’ll never know if other qualified candidates were dissuaded from running simply because Judge Wecht received the endorsement.

By contrast, the Merit Selection proposal that we support, to reform selection of appellate judges in Pennsylvania, would include measures specifically designed to make it as transparent as possible. The process for choosing appellate judges would be written into state law, including publication of the qualifications of candidates for each seat on the bench, and opportunities for public input before the Nominating Commission makes its recommendations to the Governor. In addition, we support a Nominating Commission that would include representatives from public, community, labor and business groups, who would be able to take the perspective of their members into account when making their recommendations.

Under Merit Selection, judicial candidates reach the bench based on a careful examination of their qualifications, experience and knowledge of the law. By contrast, elected judges often can’t even make it onto the ballot without satisfying the opaque interests of a political committee. So why are judicial elections touted as an unassailable model of transparency and openness?

If a recent hearing is any indication, the Nevada Supreme Court is about to allow the state’s judges and judicial candidates to “take the gloves off” when campaigning for a seat on the bench. According to the Las Vegas Review-Journal, “[j]ustices seemed to favor lifting the restrictions, which prohibit judicial candidates both in what they can say in a campaign and how and when they raise money.” The comments came at a public hearing held Thursday, that could determine the future of the court’s Standing Commission on Judicial Ethics and Election Practices.

Recent rulings by the U.S. Supreme Court have raised the issue of whether Nevada’s restrictions on judicial campaigning and fundraising infringe on First Amendment free-speech protections. The Nevada Supreme Court is deciding whether or not to overhaul the commission, which uses those rules to resole campaign disputes, and advise sitting judges who inquire about ethical issues.

The voters in Nevada recently rejected a proposal to eliminate judicial elections in favor of a Merit Selection system. Now, they’ll likely be faced with increasingly partisan judicial campaign rhetoric, and judges whose political savvy and fundraising skills are their most important qualifications for the bench. We hope that we can provide the voters of Pennsylvania with the opportunity to make a different choice.

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.

Well, let’s clarify that. You should vote on November 3^rd, and you should do as much research as possible about the candidates for the seven appellate-level court seats up for grabs this year. We even offer information about the candidates on our website here.   But that is because we have to work with the system we have, and this is a system in serious need of change. Pennsylvania is  one of only six states in which all judges are elected in partisan contests. This means, they are nominated by political parties and run on a party ticket.

Popular elections don’t make sense for judges, and partisan elections make even less sense.  Judges must have a great degree of skill and knowledge to do their jobs, and their decisions often have important and far-reaching consequences.  But they are not political leaders.  By requiring judges to run for office, however, we inadvertently require them to act like political figures, and often end up making selection decisions based on how well they can campaign and raise campaign funds rather than on their skills, experience and qualifications.

Imagine the following scenario. Your neighbor is running for judge on your political party’s ticket. You help her campaign, distribute flyers, and raise money.  Down the street, or across town, your business rival does the same for a candidate on his political party’s ticket.  Your candidate loses.  You and your rival then get into a contract dispute.  You and your rival land in court, and your rival’s candidate, now judge (or justice) presides over the case.  Sound like fun?

Judges are meant to be impartial.  They are supposed to make objective evaluations of the law to ensure maximum fairness to both parties.  They are not supposed to have constituents nor favor anyone because of personal opinions, political support or campaign contributions.   Elections force judges to focus on the wrong things. There is a better way to put judges in office (click to see our proposal for a merit selection system of judges – bills are currently before the state house and senate).

John Baer, columnist for the Philadelphia Daily News, greets the day after election day with this question: “Time to end electing judges?”  Answering his own question, Baer argues:

It has been long my contention that electing judges, especially statewide, is a joke. It strikes me even more so today. Pennsylvanians are filling six appellate judgeships this year. Yesterday’s ballot carried 22 candidates. I mean, come on.

First of all, it’s a crapshoot. Nobody’s heard of these people. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.

Then, Baer moves on to the money problem:

Also, judicial races are unseemly. Campaigns are funded by lawyers who later appear before the judges they help elect. So even apart from the pin-the-tail-on-the-donkey (or elephant) aspect of the process, electing judges begs for politics to influence justice.

Just the possibility that it will is enough to diminish faith in our courts.

Baer advocates for Pennsylvania to make a change and remove itself from the handful of states that elect all judges in partisan elections.  We agree with him and hope that Pennsylvanians will ultimately get to decide for themselves whether to find a better way to pick appellate court judges.

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.