judgesonmerit.org

There’s an old saying that in an election, someone wins and someone loses, but no one takes down the signs. Well, in addition to those signs hanging around, we have the spectre of campaigns raising funds to retire their debts. Winners and losers alike share this need, but special issues are raised when winning judicial candidates, who soon will be taking the bench, are in need of funds.

The ClarionLedger reports that recently elected Mississippi Supreme Court Justice Jim Kitchens must raise funds to pay off a campaign debt of $300,000. Lawyers across the state are being asked to contribute. Kitchens’ campaign manager Sam Hall, said the requests are not limited to lawyers. When asked about a phone bank fundraiser directed to lawyers, Hall said: “There is no fundraiser. . . . What we are having is normal campaign business.”

Hall further stated that contributions would not influence Kitchens on the Court, and he explained that Kitchens does not attend fundraisers or view contributor lists.

But we still think that a system that’s set up to have judicial campaigns raise money from lawyers and parties who will appear before them doesn’t make any sense. And it gets worse when the lawyers and potential parties are asked to contribute after the election. Now those contributors know that their money is going to help someone who will be sitting on the Court.

Whether or not a judge knows who contributed what when, this just doesn’t look right. We can understand why the majority of people believe campaign contributions influence courtroom decisions.

The Pennsylvania Law Weekly has published a commentary piece (subscription required) by PMC and PMCAction called “Let the People Decide.”  We argue that it’s time for Pennsylvanians to be given the opportunity to vote on whether we should change the way we select appellate judges.

The big question, in our view, is why only we are willing to give the people the power to make this decision:

We trust the people of Pennsylvania to make that decision. We recognize that reasonable people disagree about how best to select appellate judges. What we cannot understand is why those who defend the judicial election system on the grounds of the right to the franchise refuse to give the people of Pennsylvania the opportunity to vote on the question. How can they claim to be defending the franchise while at the same time distrusting the voters to make this important decision?

So often, critics of Merit Selection base their support for elections on the right of the franchise.  Why, then, won’t they consider allowing the people to exercise the franchise on this critical question of how we select appellate judges?

We want the people of Pennsylvania to vote on whether or not to change the judicial selection process. We’re not afraid to hear their answer. We wonder why “defenders of the franchise” are afraid to let the people vote.

Our campaign for Merit Selection has been grounded on the premise that it’s time to let the people of Pennsylvania decide whether or not to change how we select appellate court judges.  Our efforts are geared toward getting this question on the ballot for Pennsylvania voters. We’re not afraid to let the people weigh in on this question.  That’s why we’re so frustrated when defenders of judicial elections refuse to let the people have a chance to vote on whether or not the system is working.

Now, we’re not only frustrated, we must confess some envy.  As we’ve reported here and here, four counties in three states chose Merit Selection over judicial elections on Tuesday.  In three of these elections, voters chose to switch from elections to Merit Selection.  In the fourth, votes rejected the offer to switch from Merit Selection to judicial elections.  Detailed assessment of these campaigns can be found on Gavel Grab, but we believe the critical point is that in each of these jurisdictions, voters were given the opportunity to make a choice about how they wanted to select their judges.  As Gavel Grab noted:

The voters spoke loudly Tuesday, and they spoke their own minds. The critics of merit selection who say they have the angels of democracy on their side-who take it as an article of faith that voters prefer competitive elections for judges-need to reexamine their assumptions.

We agree.  But they need to do more than reexamine their assumptions.  They need to realize that it’s time to let the people decide how we should be choosing judges in Pennsylvania.  If they believe elections are the answer, isn’t it time to let the people vote about this?

An editorial in yesterday’s Wall Street Journal launches another misguided attack at Merit Selection.  Recycling tired arguments about the influence of plaintiffs’ trial lawyers on nominating commissions, the editorial asserts: “What began as an effort to keep politics out of judicial selection has become a wholesale transfer of power from voters to the legal guild.  Elections have their own problems, but at least they require the legal elite to be accountable to voters. ”

It’s hard to take this complaint seriously as it follows a rundown of the state Supreme Court seats up for election next week that identifies each candidate by political party, whether they lean “left” or “right,” and what interest groups (ie. business or labor or lawyers) support them.

In fact, the editorial actually confirms what we’ve long said is a problem with elections: judges are elected based on factors irrelevant to how they will perform on the bench.  Funding, campaign skill and affiliation with or support by certain interest groups is more important than qualifications, skill and experience.  Our friends over at Gavel Grab hit the nail on the head in their insightful post about the editorial:

Beyond the pedestrian falsehoods, we couldn’t help but appreciate the deeper irony:  over five anxious paragraphs, the Journal lays out attempts by trial lawyers to invest money into justices of their choice to reverse years of elections won by groups seeking to limit lawsuit awards.

We welcome their concern.  If the Journal believes that justices whose campaigns are funded by trial lawyers will be partial to trial lawyers once elected, perhaps they’ll be more inclined to understand the core concern of most Americans about no-holds-barred judicial elections.

It’s the perception that all this money and partisan politicking and special interest involvement create that’s so damaging to our system.  Polls repeatedly show that the public believes that campaign contributions influence behavior in the courtroom.  The Journal’s editorial demonstrates how powerful this belief is.  Merit Selection advocates want to remove this perception and what causes it by implementing a system of judicial selection that puts the emphasis where it should be on skills, qualifications and experience.

The race for the Michigan Supreme Court is heating up with the candidates having raised more than two million dollars already.  But, as a new report from the Michigan Campaign Finance Network explains, the election is costing much more than that: third party spending on television ads for the candidates is nearly two million dollars to date.  That’s about four million dollars so far to determine who’s going to get a job that is supposed to require fairness and impartiality and that the winner must not appear to favor those who helped him or her get there.

The third parties doing the spending: the Michigan Chamber of Commerce and the Michigan Democratic State Central Committee.  Gavel Grab has good descriptions of and links to some of the ads running in this campaign.  Because their ads don’t directly mention voting, these third-party groups don’t have to report their spending or disclose the source of their finances.  Many see this is a growing problem in judicial elections:

‘The peril in this is that an individual or interest group could secretly spend a million dollars to market a candidate – a very important contribution, and then have that justice vote to select its case and rule on its case,’ said Rich Robinson of the Michigan Campaign Finance Network. ‘That has considerable potential for conflict of interests and it certainly creates a troubling appearance.’

Pennsylvania faced similar issues last year when an out-of-state group ran “issue ads” marketing a candidate but not directly asking for votes.  The answer is to get money out of the judicial selection process by using a different way to pick judges that doesn’t rely on fundraising, campaigning and television ads.  We think the solution is Merit Selection for the appellate courts.

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.

Sworn in this past Tuesday, Tennessee’s new – and first woman – chief justice, Janice M. Holder vocalized her support of the Merit Selection system known as the “Tennessee Plan.” In fact, the entire Supreme Court wants to keep Tennessee’s current system. As Holder explains:

This court is not in favor of partisan election in which judges are obligated to raise millions of dollars for campaigns. This court is in favor of the current principles that comprise the Tennessee Plan.

Tennessee’s Supreme Court judges know that Merit Selection works in their state and how vital it is to keep the current system. That system, as we’ve written, is scheduled to sunset next year — on July 1, 2009 — if it isn’t renewed or modified. We hope that Tennessee maintains its Merit Selection system, and believe that Merit Selection will provide the best way for Pennsylvania to select its appellate judges, too.

An editorial in the South Bend Tribune decries the huge amounts of money being spent in neighboring Michigan for a single seat on the Supreme Court. It is anticipated that nearly twenty million dollars will be spent on this campaign, and at this point, the Democrats haven’t even named a candidate to challenge sitting Chief Justice Clifford Taylor. The editorial notes, “It’s lucky that justice is blind to this mess.”

Observing that the campaign is the focus of a battle over tort reform efforts, the South Bend Tribune boasts “Indiana, of course, sidesteps this particular problem by appointing its Supreme Court justices.” In fact, Indiana’s appellate courts are selected through a Merit Selection process, with a nominating commission, appointment by the governor and retention elections.

The editorial concludes by recognizing that Indiana’s system might not work for every state, but recommending that Michigan “take a look at revising the selection process for its high court so that the best candidate is determined by his or her qualifications and the input of citizens — not by special interests seeking an advocate.” This is good advice for Michigan, and for Pennsylvania, where we elect all our appellate judges in partisan elections.

There is an insightful editorial in the Tennessean urging Tennessee to maintain its Merit Selection system. Buck Lewis, who’s seen the Tennessee Merit Selection system from the perspective of a nominating commission member and a disappointed judicial candidate, wants the people of Tennessee to know that the system works.

That’s right, Mr. Lewis first failed to be nominated by the commission. Then, a year later, when he was recommended to fill a vacancy, his panel was rejected by the Governor due to a lack of diversity. Yet he still is a champion of Merit Selection:

More than 30 years of experience with selecting and electing judges tells me that the Tennessee Plan is the best plan we have ever had to pick our judges.

Mr. Lewis counts among his reasons for supporting Merit Selection the nominating commission’s ability to screen out unqualified applicants; the commission’s thorough vetting of candidates in a way not possible in the electoral system; and the avoidance of expensive, contentious elections.

It’s hard to imagine turning back the clock to the days when political parties nominated slates of Supreme Court judges. Tennessee would be the only state ever to scrap merit selection and revert back to raw politics.

We hope Tennessee will heed his call, and that Pennsylvanians will also realize why Merit Selection is a better way to select appellate judges.

An article in Wednesday’s St. Petersburg Times describes two judicial races where the campaign rhetoric is getting partisan – and personal – fast. While these races are supposed to be nonpartisan, personal attacks and statements about political leanings are raising eyebrows, as well as questions about how far candidates in these races can go when trying to sour voters’ opinions of their opponents.

When judges have to conduct (or endure) negative campaigns, politics becomes the focus. It discourages otherwise qualified candidates from running if they don’t have the connections and funds to run a strong political campaign. The message is clear. To be a judge, you also have to be a skilled politician.

Merit Selection relieves judicial candidates from the burden of campaigning. It lets judges be judges, by shifting the focus  back to each candidate’s abilities and qualifications. No plan for judicial selection can eliminate politics from the process, but we can prevent it from being a job requirement for a seat on the appellate bench in Pennsylvania.