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Gavel Grab features a review of an article written by Professor Keith Swisher of the Phoenix School of Law. Swisher’s piece, published in the Georgetown Journal of Legal Ethics, looks at the ethical implication of the widespread practice of lawyers contributing to judicial campaigns.

Swisher concludes that campaign contributions do affect case outcomes, citing a 2009 study by Professor Joanna Shepherd that used a model comparing retiring and nonretiring judges to show that campaign contributions did indeed affect judge’s votes. He also cites a 2007 study by Margaret Williams and Corey Ditslear that shows a substantial minority of judges on the Wisconsin Supreme Court appeared to change their voting in exchange for campaign contributions. Finally, he cites a study by Chris W. Bonneau (a staunch supporter of judicial elections) & Damon Cann, which found a “quid pro quo” relationship between contributions and how judges voted in Michigan and Texas.

Given this, Professor Swisher argues that campaign contributions to judges disturb the administration of justice and widen the “wealth rift” between wealthy and poor litigants. He also argues that, under several ethical models, it is immoral for lawyers to contribute to judges. However, he also notes that due to an attorney’s obligation to their client, it may be immoral for an attorney not to donate to campaigns.

Swisher advocates limits on attorney contributions to judges, the use of Caperton-style recusal motions to disqualify judges, research into the opposition’s campaign contributions, disclosure by lawyers of their contributions to presiding judges and even withdrawal in certain cases. Professor Swisher’s article underlines the problems with judicial elections, and highlights the need to work for change.

Judicial retention elections are a vital part of both Pennsylvania’s current system and merit selection, the system favored by Judges on Merit. Through them, the people make their voice heard. However, it’s important to remember that though we have the power to remove judges, we ought to wield it wisely, evaluating our judges based on their legal philosophy as a whole, rather than on a handful of politically contentious decisions. Gavel Grab’s recent piece focuses on efforts to remove several Justices from Florida’s Supreme Court and draws our attention to a study trumpeted by Tea Party groups, who advocate for the Justices’ dismissal. Though published in 2005, the study has recently gained traction as these groups look to justify their efforts to remove several members of the Court. This study, indirectly funded by the National Association of Manufacturers through the American Justice Partnership, focuses on a handful of decisions (eleven over the past thirty years) to unfairly label Florida’s Supreme Court as ‘Activist.’

It is important to remember that we ask judges to make decisions not on what is politically popular but according to the law. Much of the anger aimed at Florida’s Court comes from a recent ruling that barred a state referendum on federal health care legislation. However, it is a mistake to remove judges due to occasional unpopular decisions. The best judicial philosophies demand that judges make unpopular decisions if what is popular is contrary to the law or the facts. It is vital we evaluate judges based on their record as a whole, rather than focusing on a handful of decisions. Moreover, the involvement of NAM is troubling. Whenever any one group begins to play an outsized role in judicial elections, it creates the danger of bias when that party, or those it represents, comes before the bench. Judges must be held accountable, it is true, but they must also be allowed to impartially apply justice, even if we disagree with the result. Our vote “should be cast based on honest research, not on partisan gamesmanship,” as Gavel Grab writer Charlie Hall points out, and we urge Floridians to cast their judicial votes accordingly.

Peter Hardin at Gavel Grab reports that for the first time Iowa will make interviews of state Supreme Court candidates available to the public through a live stream on the internet. The Des Moines Register announced this change along with the commission’s plan to interview applicants the week of January 24. Iowa uses a merit selection system for selecting its judges, and the change in the selection commission’s procedure is an attempt to increase openness in the judicial selection process.

Some have argued that the interviews are uninteresting and viewers will be bored. We disagree. Even if the questions during interviews are about procedural and technical issues, opening candidate interview to the public gives people an insight into the process and a sense of the candidates being considered for the bench. It gives people the opportunity to see for themselves that: “[t]he applicants are competent lawyers who are going to have hard questions asked by other lawyers.” One commission member, Guy Cook, believes opening the interviews to the public allows people to determine for themselves whether the commission acts in a “careful, thoughtful way to nominate the best qualified.” It demonstrates that transparency is a priority, and improves what is already a good judicial selection system.

Over at Gavel Grab, Peter Hardin draws attention to the costly judicial elections underway in Alabama. Noting that Alabama has the most expensive Supreme Court elections in the country, Hardin examines an editorial that appeared in the Press-Register criticizing judicial elections.

The editorial opens with a strong critique of judicial elections in Alabama: “As long as state Supreme Court justices have to raise money – sometimes lots of it – to win their seats, justice in Alabama is going to look like it’s for sale.” It goes on to describe how judicial candidates go about raising money in the same way as candidates for other offices – going on the campaign trail, shaking hands, and actively fundraising. This creates the perception that judges can be influenced by campaign donations and political preferences. The editorial notes that Alabama’s rules regarding political action committees worsen the perception problem because they allow candidates and donors to hide the source of donations. The editorial echoes Justice at Stake executive director Bert Brandenburg’s concerns over judicial fundraising:

“As long as we’re asking more judges to dial for dollars from the people who appear before them, then the more we’re asking judges to act like Huey Long on the campaign trail and then turn around and act like Solomon in the court room.”

We agree that judges should not be in the fundraising business, and that their presence there diminishes public confidence in an impartial judiciary. We believe that a change to the selection process is necessary, and that merit selection is the way to ensure fair and impartial courts. The editorial concludes with a concern that we share in Pennsylvania:

“As long as the litmus test for Alabama Supreme Court justices is how well they can fund a political campaign, then the state’s going to be stuck with the reputation – or at least the perception – that it tolerates tainted justice.

Over at Gavel Grab, Peter Hardin takes a look at various judicial elections and ballot initiatives happening around the country. In doing so, Hardin provides examples of the weaknesses inherent in judicial elections.

In Georgia, the Secretary of State is looking at the possibility that a candidate for the state supreme court may have violated election law. A Huffington Post commentary denounces the amount of money involved in the campaign for seats on the Ohio Supreme Court, referring to the money as “scandalous ‘justice for sale’ financing.” Pointing to the lack of attention typically given to judicial elections, the commentary attempts to bring to light the: “wave of campaign cash and independent expenditures by businesses and organizations whose interests are tied up in cases before the Ohio Supreme Court.”

In Nevada, the struggle continues over the ballot initiative to switch from judicial elections to merit selection. Meanwhile, an editorial in the Detroit Free Press asks Michigan voters to approve a constitutional convention to dispose of judicial elections. Referring to “the farcical exercise known as judicial elections,” the editorial explains that the election system is “dysfunctional” and dominated by campaign contributions from interested parties. The editorial argues that, the system:

tends to work poorly for ordinary citizens. Michigan’s ostensibly independent judiciary is increasingly larded with apparatchiks who owe their initial appointments to partisan loyalty and are virtually immune from accountability thereafter.

Judges are different from other government offices, and the process to select them should reflect these differences. The use of ugly or illegal campaign tactics, the perception that justice is for sale, and the involvement of special interest money are all reasons that judicial elections do not work to create fair and impartial courts. Merit selection addresses these concerns and provides a way to select an independent judiciary.

Over at Gavel Grab, Peter Hardin notes the growing trend of expensive judicial elections.

This trend is in part due to an increased expenditure on television ads. Referring to information contained in a news release complied by the Brennan Center for Justice and the Justice at Stake Campaign, Hardin explains that television ads are now being used in six states with upcoming judicial elections. Through October 6, more than $2 million has been spent on air time for judicial elections. Another indicator of this spending trend is that Minnesota has seen increased “partisan politicking.” Minnesota has traditionally been a state that avoided expensive Supreme Court elections.

The news release cites Charles Hall, a spokesperson for the Justice at Stake Campaign in Washington as summing up the 2010 judicial campaign season: “The new politics of judicial elections continues to reach states that haven’t experienced it before, and that’s been the story of the 2010 campaign.”

We have long been concerned about the role of money in judicial elections, and as the amount of money involved grows so do the reasons to worry. With more states engaging in expensive judicial elections, the problem is only getting worse. Expensive judicial campaigns create the perception that justice is for sale. Merit selection is a way to take money out of the equation and maintain judicial independence.

Yesterday’s call by Governor Rendell for the legislature to pass the pending Merit Selection bills has got Pennsylvania talking.  An editorial in the Philadelphia Daily News shares the Governor’s sense of urgency to pass the legislation and argues: “Imagine if judges didn’t have to rely on the kindness of ward leaders, or the luck of ballot position.”

In addition, the Philadelphia Inquirer has a full report on the news conference and quotes the Governor’s exclamation that there is “no excuse for not moving the legislation this year and putting the question on the ballot by late 2011.” The Inquirer also quoted PMC Executive Director Lynn Marks who explained that Merit Selection is designed to get the most qualified, fair and independent people on the appellate courts.

The Pittsburgh Post-Gazette notes that the Governor is seeking to give a jumpstart to the Merit Selection legislation.  The article quotes local State Senator Jim Ferlo on the need for reform: “The impact of the electoral system on the impartiality of judges puts the fairness of our courts in question, and now requires judicial candidates … to raise millions of dollars to run their campaigns.”

Additional coverage of the Governor’s press conference and the call for action can be found at WHYY 91 FM, the Citizens’ Voice, the Times Leader, the Patriot-News, and Gavel Grab.

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

Some friends in the corporate world share our concerns about the role of money in judicial elections. Merck VP, Charles R. Grezlak, told the Center for Political Accountability, a nonprofit group working towards greater transparency in political spending, that the pharmaceutical company would no longer make donations to state supreme court candidates.

Merck’s decision came partly in response to the recent U.S. Supreme Court ruling in Caperton v. Massey. Writing for the majority, Justice Kennedy said:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In spite of the Court’s strong warning that campaign contributions may jeopardize a litigant’s right to a fair trial, judicial fundraising is a necessary evil in states that continue to elect their judges through partisan elections.

Merck’s decision to remove itself from this politicized arena is a welcomed step in the direction of greater judicial accountability. Merck’s leadership on this issue may encourage other major companies to follow suit by extracting themselves from the money game as well. Businesses, as well as all other potential litigants, should not feel pressured to compete for justice with their checkbooks.

In Pennsylvania, campaign spending on judicial elections has skyrocketed. Notable (and notorious) was this year’s Supreme Court election in which the two candidates raised well over three million dollars combined. Pennsylvanians need to take a hard look at where all this money is coming from and how it is impacting the fairness of our courts.

Bills:

• House Bill 1619 and House Bill 1621

News and Press:

• Philadelphia Inquirer: House urged to end election of Pa. judges, Amy Worden. Lynn Marks quoted.
• WHYY: Pa. having doubts on wisdom of electing judges, Scott Detrow. Robert Heim, PMC Chairman, quoted.
• PR Newswire: Governor Rendell Endorses Judicial Merit Selection Reform Bill
• Capitolwire (Subscription Required): House committee weighs benefits of appointing appellate judges, Laura Olson. Lynn Marks quoted.

Blogs and Opinions:

• Gavel Grab: Merit Selection Urged at Pa. Hearing; JAS Submits Pa. Testimony on Merit Selection
• It’s Our Money Blog/ Philly.com: Rendell pushes for merit selection of judges

And of course, read our take on the hearing here.

We will post more comprehensive coverage of the hearing, including transcripts of testimonies, within the next few days.