Ciavarella admitted that he kept for his personal use thousands of dollars in cash that had been contributed to his retention election campaign.  This was illegal, as campaign funds may not be appropriated for personal use.  The admission of this further illegal conduct was made in an attempt to demonstrate that he had other sources of cash aside from the alleged kickbacks he took in exchange for sentencing juveniles to serve time in private detention facilities.  Whether that will convince the jury remains to be seen.

But it demonstrates the dangers inherent in the expensive judicial electoral system.  It is almost unthinkable that a sitting judge would keep cash – likely donated by attorneys and others who frequently appeared in the judge’s courtroom – for his personal use.  Still more inconceivable, this violation was not disovered by the authorities – this was an admission freely made as part of his defense to even more serious charges.  How can this be?

Self-policing is not enough; campaign finance rules are tougher for judicial campaigns.  For example, judges are not permitted to personally solicit campaign contributions. But if the rules aren’t enforced, there’s no point to having them.

Many judges claim that in strict compliance with the spirit of the rules, they don’t even read the lists of donors and are unaware of who contributed to their campaign and in what amount. How is the public to believe this, especially in the face of evidence that a judge was able to keep and use campaign cash donations? And once this fallacy is removed, how is an already very skeptical public to believe that campaign contributions really have no impact on judicial decision-making?

There is a simple solution. Get judges out of the fundraising business and get money out of the process for selecting judges. Merit Selection is the answer.

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.

There should be no “price of admission.”  Qualified lawyers with reputations for fairness, honesty, and ethical behavior should be able to aspire to serve as judges, without regard to their fundraising abilities or political connections.  This is what Merit Selection would achieve for the appellate courts.

The very fact of the donations should raise eyebrows –do we really want sitting judges getting involved in electing their colleagues on the bench? But that’s not what’s newsworthy in Alabama.  There, the story made news because two Republican justices were making contributions to Democratic candidates.

The money flowing to judicial campaigns is already a river of trouble.  Do we really need to complicate things by having  judges giving money in hopes of influencing who will be sitting with them on the bench?

There is a solution: get judges out of the fundraising business altogether by replacing appellate court elections with Merit Selection.

PMC’s press release documents fundraising and spending by the candidates’ campaigns, but notes that although they together raised and spent over $3.6 million, that is not the whole money story.  Instead, we found it necessary to research who else was spending money on the election.

The answer was political bodies, incuding the state Republican Party, the state Democratic Party, and the Republican Senate Committee.  In fact, the state Republican Party directly funded Judge Orie Melvin’s television campaign, to the tune of at least $975,849.  This means the state Party outspent the candidate’s own campaign.

Reports also reveal that from January 1, 2009 until November 23, 2009, the state Republican Party spent at least four million more and the state Democratic Party spent close to $2 million. Although the parties were not required to identify the candidates on whom they spent money, it seems reasonable to assume that a good portion of that six million dollars was directed to the Supreme Court election.

Pennsylvania had the nation’s most expensive Supreme Court elections in the 2007-08 election cycle, and the available data is leading elections experts to predict that Pennsylvania will again earn that title for 2009-10.   As PMC’s Lynn Marks explained, “Pennsylvanians should not take pride in leading the nation in spending for judicial elections.  Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

Let’s take a closer look.  It’s not really clear whose money will be turned away.  Is it lawyers practicing before the judge now, or lawyers practicing before the Supreme Court now?  The campaign itself admits it is “impossible to predict the future,” and that recusal may be warranted if a donor later appears before the judge.  And, as the report points out, the pledge “does not mean Baker won’t accept contributions from other lawyers, including those who might share firms and offices with people who practice before her or lawyers who’ve been before her in the past.”

The blog opines that this is a tactical move by the campaign: trying to convert anticipated low fundraising into a statement of reform.  This may be an unfair characterization; perhaps the judge was motivated by only the best intentions. But that doesn’t change the fact that she may still take contributions that can create potential conflicts.

The blog also notes that a more appealing position would be for a candidate to turn away all donations from lawyers. We believe there’s an even better solution to the issue of campaign fundraising: get judges out of the fundraising business altogether. Stop the flow of money to judicial candidates from lawyers, law firms, businesses, unions and individuals who litigate in the state courts.  Merit Selection is the way to do this.

The candidates’ war chests may continue to rise after the election, as they have until the end of the year to raise money for their campaigns. As a point of reference, in the 2007 race, the two winning candidates, Justices McCaffery and Todd, raised over $330,000 and over $650,000, respectively, in the two reporting cycles after the election. Of the two losing candidates, one raised over $340,000, and the other raised just under $100,000.

The O’Jays famously sang, “Money, money, money, money. Some people got to have it. Hey, hey, hey. Some people really need it.” This is certainly true of statewide judicial candidates in Pennsylvania.

Marks and Goodman explain that to run a state-wide campaign requires a lot of money, and the money usually comes from lawyers, lawfirms, unions and businesses that frequently litigate in the state appellate court system. “They give because they care about who runs the courts in which they pursue their interests.” The op-ed goes on to explain why this seemingly logical scenario creates problems: it creates a perception that campaign contributions affect decision-making in the courtroom.

The abiding symbol of our courts is the statue of Justice blindfolded, signifying that judges should not be swayed by personal bias, popular opinion, political expediency or the identity of the parties appearing before them. A judge’s personal relationships and political connections should have no influence on how cases are decided. Electing judges undermines this image. The public perceives a judge with eyes wide open, pockets bulging with campaign cash and knowledge of where the cash came from.

Even though the vast majority of judges are sincere when they explain that campaign contributions don’t affect how they decide cases, the public understandably has trouble believing this. It looks like justice is for sale to the biggest campaign contributors.

Marks and Goodman then explain that the current Supreme Court race — with the candidates running an ad war and fighting about who took contributions from what entity — is only confirming for the public the poisonous influence of money in the judicial selection system.  There is only one answer: “Enough is enough. It’s time to get judges out of the fund-raising business and to put the blindfold back on. The way to achieve this is to stop electing appellate court judges.”

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

With the scandals in the Luzerne County court system, the continuing flow of special interest money into state court elections, and the likelihood that the U.S. Supreme Court will rule in October (in the Citizens United case) that corporations have a fundamental right to spend freely on state elections, it’s high time for a groundswell of Pennsylvania voices to let our leaders know we want our judges selected by their qualifications, not by a popularity contest and not by a fundraising arms race.

We hope Pennsylvanians will heed the call and make their voices heard.