judgesonmerit.org

In a letter published in the Harrisburg Patriot-News, PMC’s Lynn  A. Marks points out the problems in Dan Pero’s recent op-ed about Merit Selection.  Pero focused on the fact that even Merit Selection systems cannot totally eliminate politics from judicial selection. While conceding this point, Marks pointed out the big issues that Pero ignores and the real reasons Pennsylvanians want to find a new way to select judges:

Seventy-six percent of surveyed Pennsylvanians believe that campaign contributions affect judicial decision-making. In other words, the public believes justice is for sale. The same survey found that 73 percent believe that the most qualified candidates do not win judicial elections. This is not surprising. Elections are designed to reward the best campaigners and fundraisers, not the most qualified candidates.

Marks further notes that by tabling the Merit Selection legislation, the House Judiciary Committee essentially voted against allowing the people of Pennsylvania to decide whether to change how we select appellate judges.  93% of surveyed Pennsylvanians want the opportunity to decide. Pero thinks the legislature serves the voters by tabling legislation and keeping the issue bottled in committee.  We disagree and  believe the legislature can show voters it trusts them by giving them the opportunity to decide for themselves whether there is a better way to choose judges.

In an op-ed in the Harrisburg Patriot-News, PMC today calls for the state legislature to begin the process of giving the people of Pennsylvania the opportunity to decide whether there is a better way to select appellate court judges. The editorial notes the recent scandals that have rocked our state courts, including the indictment of a sitting Supreme Court justice for illegal campaign practices, and highlights the growing dissatisfaction with judicial elections:

A 2010 public opinion survey of Pennsylvania voters reflected deep distrust of the judicial election system: 76 percent believe that campaign contributions influence judges’ decisions; only 21 percent believe the most qualified candidates win judicial elections.

These staggering numbers reflect a lack of faith that elections produce qualified, fair and impartial judges. Research demonstrates widespread belief that “justice is for sale” to campaign contributors with deep pockets.

The editorial points out that:

It has been more than 40 years since the public had the chance to weigh in on how to choose our judges. In the 2010 statewide poll, 93 percent responded that Pennsylvanians should have the right to vote on this issue.

Pennsylvanians should not have to accept a system they believe is broken. It is time to give voters the opportunity to decide whether there is a better way to choose appellate court judges. Our legislators should give the public that opportunity. 

Today, the House Judiciary Committee is scheduled to vote on H.B. 1815, which would amend the constitution to change from electing appellate judges to using a Merit Selection system.  A positive vote will send the bill to the House Floor. But this is only the first step in a lengthy process.  Amending the constitution takes much time and deliberation — two successive legislatures must pass identical legislation.  If that happens, the people must vote in a referendum to amend the constitution.  As PMC points out in the editorial, “our constitution can change only if the people of Pennsylvania vote to change it.”

We believe it is time for Pennsylvanians to have that opportunity.  We hope the legislature will give it to them.

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.

The Harrisburg Patriot-Times, which recently ran our opinion piece in support of merit selection, published a letter yesterday in which the author questioned whether merit selection of judges is any better than electing them. While we thank the author for mentioning the work we do to educate voters, we feel obliged to make clear that there is a big difference between the two methods of judicial selection.

The author reasons that because, from his experience, retention elections produce very low voter turnout whether the judge was initially elected or appointed, the public must be equally satisfied with judges in both systems, because:

In Pennsylvania and in Colorado, where I had once resided, retention elections have notoriously poor turnout. Judges routinely win retention on voter turnout of only 17 to 25 percent of registered voters. The conclusion I draw from this is that electing judges for their first term is no better or worse than merit-selection.”

We must respectfully disagree with this broad conclusion. The problem with electing judges is not merely the risk of getting less qualified candidates. The biggest problem with electing judges is that even if an election were to produce the exact same judges as would merit selection, elections beget campaigns, campaigns beget expenses, and expenses beget donations.  Once money is injected into the mix, there is a perception that those who support the candidate will have more influence before the court than will others.

Our recent Supreme Court race is a telling example of this. Both candidates, Joan Orie Melvin and Jack Panella, were rated as highly recommended by the PA Bar Association. According to experts and editorial boards, either candidate could have served competently, and either could have been chosen through a merit selection process. And under either system, the winner could be removed from the court in a retention election if he or she were to fail to live up to the standards of the electorate.

So far so good. But in Pennsylvania, instead of vetting the candidates before a non-partisan group, the candidates were forced to raise gobs of money from the very groups likely to appear before them. In fact, the candidates accused each other of being influenced by the money each had received, as we pointed out in our piece in the Patriot-News.

Can the public help but question the impartiality of a court under these conditions? Can we really have faith that politics will play no part in challenges to the upcoming reapportionment of state legislative districts that go before the court when the political parties spend so much money getting candidates elected?

The influence of money, real or perceived, is something that even the most ardent voter-education campaigns can’t overcome. While we strongly believe in voter education, and are often frustrated at the dearth of media coverage of judicial elections, only merit selection can truly take money out of the mix.

The Harrisburg Patriot-News featured an op-ed by PMC’s Lynn Marks and Shira Goodman this weekend. The op-ed opens with a question about the money spent in the election — millions by the candidates and perhaps millions more by political parties and other third-party special interests:

Only 20 percent of registered voters voted for a Supreme Court candidate. So, what did that money buy? Diminishing public confidence in our court system.

Marks and Goodman go on to explain the problems caused by the role of money in the electoral process and the inability of the recusal system to address these problems.

Marks and Goodman conclude, “The solution to the problem of money and judges is to get money out of the judicial selection system. The only way to do that effectively is to change the way we pick appellate judges.”  They explain why other proposals, such as campaign finance reform or public financing, would not be as effective “because both maintain the role of money in the selection process.”

The real solution is Merit Selection.  “With a merit selection system, appellate court candidates don’t have to raise money from those who are likely to appear before them. This results in public confidence in the process and trust that the scales of justice are in balance. And, that, in the words of that Mastercard commercial, “is priceless.””

Jeanette Krebs, editorial page editor of the Harrisburg Patriot-News, counts Merit Selection as a reform Pennsylvania needs.  In Sunday’s editorial, Krebs calls for a new constitutional convention, echoing former Governor Raymond Shafer’s words when he opened the last such convention in 1967:

“Today we meet with history. We meet in a time that demands heroic efforts if we are to conquer the complex challenges that lie before us and our children.”

Krebs offers a list of some key issues related to our system of governance that should be addressed:

[A]bolishing the lame duck session when lawmakers vote on bills after an election, and in some cases, right before they leave office. There is merit selection of judges, giving the state auditor general the ability to examine legislative finances, true campaign finance reform, tax reform, biennial budgeting.

She wisely notes that “In looking at these issues it is clear that past efforts are not adequate to meet present and future needs.”

PMC and PMCAction have not taken a position on whether Pennsylvania should hold a new constitutional convention, but we are certainly glad to see Merit Selection on a list of major reform issues the people of Pennsylvania need to address.

The Harrisburg Patriot-News is urging Pennsylvania to choose Merit Selection. An editorial inspired by the Caperton decision and the recent introduction of legislation that would implement Merit Selection for the appellate courts argues:

The egregious West Virginia case is the kind of scenario that opponents of our current system of electing judges have warned against for years. When candidates are forced to raise so much money for a judge seat, it is difficult for them not to find themselves rendering decisions involving some of their contributors.

Studies show that much of the money raised for judges is contributed by lawyers and in Pennsylvania there are no restrictions on judges presiding over cases involving those who contribute to their campaigns.

This is a serious problem. If nothing else, it provides the basis for a public perception of bias. And the fact that those who want to sit impartially on our state’s highest courts are raising money through one of the two major political parties — after getting that party’s endorsement — is just wrong.

The editorial poses Merit Selection as the solution and goes on to describe the recently introduced legislation.  The editorial concludes that the Caperton case is “s a warning sign of what could happen here.”

In an editorial inspired by today’s United States Supreme Court argument in Caperton v. Massey, the Harrisburg Patriot-News calls for changing the way we select judges in Pennsylvania:

Given that real life judicial elections can, in fact, be just as intriguing as fiction, should we continue to allow the possibility that money can influence not only whom we elect, but potentially the decisions made by judges once they are on the bench?

Citing recent polls showing very high levels of concern about the influence of campaign contributions on judicial decision-making, the editorial argues that it’s time to get money out of the judicial selection process.  Recusal rules are a good start, but more significant reform is needed:

We hope the U.S. Supreme Court will agree that recusals are necessary when judges are faced with issues that impact their financial backers.

But we also hope there will be action in the state General Assembly this session to push legislation that changes our system from electing appellate judges to selecting them based on merit. That way we can get money, once and for all, erased from the appellate court equation.

Well put, and a very good agenda for court reform in Pennsylvania.