judgesonmerit.org

In a thoughtful piece in the Huffington Post, Lisa McElroy and Amanda Frost explore the issue of recusal. The context is the Proposition 8 case in California and claims that the presiding judge should have recused because of his sexual orientation. The article’s central premise gets to the heart of what recusal is really for, namely, cases where the judge has a personal financial interest in the outcome of the case or a close relationship with the parties or lawyers in the case such that his or her impartiality can reasonably be questioned:  “But essential aspects of the human condition — such as sexual orientation and loving relationships — cannot be grounds for requiring that a judge step aside.”

The article demonstrates a critical appreciation for what we should strive for when selecting judges, the most qualified,fair and impartial judges we can get:

The truth is that every judge comes with a race, gender, sexuality, family, friends, and a host of other biological characteristics and personal experiences that color their view of the world. That’s a good thing. We want black (and white) judges to decide cases about affirmative action. We want female (and male) judges to decide cases about gender discrimination. And we want gay (and straight) judges to decide questions about same sex marriage. Even if we could find race-less, gender-less, asexual hermits to serve as our judges, why would we want such isolated individuals to address the vital issues facing our society? Rather than try to strip judges of their humanity, we should instead seek to fill judgeships with thoughtful people who strive to understand perspectives that differ from their own and remain neutral when deciding cases questioning viewpoints they personally hold.

McElroy and Frost get it just right.

According to the Los Angeles Times, Los Angeles County Superior Court Judge Harvey Silberman was recently acquitted of criminal charges for allegedly attempting to bribe his opponent. The Times said the trial provided “a glimpse into the little-publicized world of judicial elections.” Silberman’s attorney, Shepard Kopp said, “The problem with politicizing judicial elections . . . is you get rogues, rogues like Evelyn Alexander and Randy Steinberg, willing to do whatever it takes to win.” Alexander and Steinberg were political consultants to Silberman and pleaded no contest to misdemeanor conspiracy charges.

The problem goes beyond rogues “using a bare-knuckle approach to the races” to seriously damaging the integrity of the judiciary. Rumors of this behavior substantially undermine public trust in the courts. As Deputy Atty. Gen. Zee Rodriguez said, “You can’t violate the public’s trust to gain a position of public trust.”

Writing for the Huffington Post, Jessica Levinson says “the sordid Silberman affair” raises a broader issue as to the appropriateness of judicial elections. Levinson asks: “Does being a good jurist have anything to do with being a good judicial candidate;” “Can we count on judges to be truly independent…if they must stand before the public every few years in order to keep their jobs;” “Will it be any surprise when special interests pour large sums of money into judicial races?” The answer: not likely.

What is likely is that incidents like the Silberman case — and judicial elections generally – compromise the integrity of the judiciary and cause the public to lose confidence in the courts.

Over at the Huffington Post, Charles Kolb asks whether state judges can be bought. Noting that many states elect at least some of their judges, he points out that the fact that judges and judicial candidates may accept donations from parties and attorneys who might later before them in court gives the appearance that justice might be for sale. Furthermore, judges largely decide for themselves whether it is appropriate for them to hear a case. Referring to his initial question about whether judges can be bought, Kolb announces: “The fact that the answer is not a resounding ‘no’ is a serious problem for the integrity of our state judicial system.”

The article then examines whether there is evidence that campaign contributions to judges are given with the anticipation that lawyers or parties will receive favorable treatment later on. Kolb discusses a rule created in some municipal jurisdictions in the 1970s that required that attorney contributions in judicial elections remained confidential. Without name recognition to accompany their donations, money from lawyers “dried up.”

Kolb goes on to discuss the rising cost of judicial elections, as well as the possibility for corporate and union money created by the Citizens United decision. He also looks at attempts to reform the judicial system in different states, noting that states with merit selection systems frequently have more highly respected judiciaries than states that hold elections. Kolb closes with an observation about the danger posed by electing judges:

If our state courts are seen as dispensing ‘jukebox justice,’ then all Americans lose: our judges will have become just one more commodity for sale, and our system of justice and its principles of fairness, objectivity, and independence will be lost.

We agree that the money involved in judicial elections is a danger to public opinion of the courts, and that even just the appearance of bias or influence undermines public confidence in the justice system. Merit selection is the best way to get judges out of the fundraising business and remove money from the process of selecting judges. It is the best way to ensure fair and impartial courts.

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.

Roderick M. Hills at the Huffington Post believes that there is a threat to the independence of state judiciaries and that merit selection offers the best solution. His post discusses some of the dangers created by the increasing amounts of money involved in judicial elections, noting that judicial independence is threatened when judges become fundraisers. Hills admonishes those who: “foolishly ignore the increasing number of politically charged judicial contests that are characterized by large campaign expenditures from groups or individuals who seek to influence judicial opinions.”

Hills is concerned with about how contested judicial elections affect the business climate and the willingness of businesses to operate in a particular state. He urges: “Business is best when it operates in the market place and not the political arena.” He notes that the money problem creates difficulties for big businesses whose courtroom opponents may be able to bring suit in a state where they are regular contributors to the judge presiding over the case.

If big business is concerned about facing bias in the courts, what about the threat to small business owners and independent litigants with fewer resources? Courts should be fair and impartial, and litigants should not have to worry about where judges get their campaign funds. Merit selection takes judges out of the fundraising business and ensures an impartial judiciary.

Over at the Huffington Post, attorney and professor Andrea Lyon offers a chilling analysis of the insidious effects on our courts of the money and pressure to please that characterize judicial elections.

She argues that electing judges threatens actual judicial independence both by requiring judges to act in accordance with what is popular, even at the expense of what is right, and also by introducing the poison of money.  She closes with an appeal that notes the critical importance of the judiciary and urges reform:

Being a judge is a hard job. It requires intellectual acuity, legal knowledge, patience, compassion and toughness and most important of all, independence. We need to change how we select judges in this country before judicial independence becomes not only endangered, but extinct.

Retired federal judge Lee Sarokin praises Merit Selection in his latest contribution to the Huffington Post. He first notes the big problem of money in judicial elections:

Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution?! Is it any less unseemly if the check was delivered a week or a month before? This is the by-product of judicial elections. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe, but for many there is an expectation or a perception of a quid pro quo. How else does one explain contributions to both of two rival candidates?

He writes that while not perfect, Merit Selection systems using nominating commissions have a track record of putting well-qualified judges on the bench. He believes Merit Selection works better than the money-influenced electoral system, especially because of the lack of relevant information available to the voters.

Sarokin also deflates the argument that elections ensure judges are accountable to the people. He argues that judges are not supposed to be responsive or accountable to the public will, but rather to the laws and the constitution.  Elections can undermine this principle:

Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.

Well put.

Former federal judge H. Lee Sarokin offers a thought-provoking blog post on the Huffington Post entitled, “When Does a Campaign Contribution Become a Bribe?“  Judge Sarokin opens with this striking image:

Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution! Is it any less unseemly if the check was delivered a week or a month before?

He then continues to explain the Caperton decision and the lack of any rule explaining how high a campaign contribution must be to be deemed “too high.”  Judge Sarokin seems to agree with us that it’s not the amount of the donation, it’s the very fact of the donation that is problematic.  He sums this up with an indictment of the judicial election system:

What should be unacceptable is the election of judges. 39 of the states elect judges. Contributions to judicial campaigns now total in the hundreds of millions of dollars. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe. But for many there is an expectation of a quid pro quo. How else does one explain contributions to both of two rival candidates?

Judge Sarokin closes by enumerating additional problems with elections, including the lack of relevant information available to voters and the fact that judicial elections become popularity contests, rather than exercises to find the most qualified judges:

Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.