judgesonmerit.org

An Illinois judge is being scrutinized for her acceptance of campaign contributions from three law firms shortly after assigning them favorable trial dates in the asbestos case calendar.  As The Telegraph reports, Judge Barbara Crowder was removed from presiding over those cases after news of the donations became public, and now Madison County Board Chair Alan Dunstan has requested that the Judicial Inquiry Board investigate:

Importantly, the acceptance of certain campaign contributions creates a perception of conflict and negatively impacts the image of Madison County, the courts and of Judge Crowder. . . . As Madison County Board chairman, I appreciate the quick action of Chief Judge Ann Callis and the other judges in the Third Judicial Circuit to remove Judge Crowder from her former docket. However, despite that action, I believe the judicial review I have requested is warranted.

Judge Crowder maintains that there is no connection between her scheduling order and the contributions and has announced that she will return the campaign contributions.

This incident, however it is resolved, highlights a major problem with electing judges — elections require judicial campaigns to raise money from the people and organizations most likely to later appear before those judges in court.  This, in turn, fosters the public perception that “justice is for sale.”  The best way to solve the problem: get judges out of the fundraising business.

In a 4/25 editorial, the Chicago Sun-Times calls for new standards to require a judge to step down from cases involving campaign contributors. The paper laments the increasing price tag of judicial elections, and the perception that campaign contributions to judges have an influence on their rulings.

How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?

It’s a problem that’s getting worse, as big money has started pouring into Illinois judicial races. Last fall, more than $3 million was funneled into the retention campaign of Illinois Supreme Court Chief Justice Thomas L. Kilbride — the most in state history for a retention race.

As judicial campaign spending continues to increase, mandatory recusal rules are an increasingly important tool. They help mitigate the appearance that impartial jurists might be influenced by campaign donations. They also prevent judges who might be tempted to show favoritism from ruling on cases involving donors. But we think a better solution would be to relieve appellate judges of the need to raise campaign funds in the first place.

Under Merit Selection, there is less potential for influence, real or perceived, because judges can reach the bench without needing campaign donations. Appellate judges are evaluated based on their knowledge, experience and skill, instead of their ability to amass campaign funding. And when they go before the voters in retention elections, they’re not running against a political opponent. They’re running on their service on the bench, a record that the public can look to when deciding if they deserve to be retained.

Potential conflicts of interest aren’t completely eliminated, of course, but one important source is taken out of the equation. Judges can rule without the specter of campaign donor influence hanging over their decisions, and the public can be more confident in the fairness and impartiality of the courts. That’s one important reason why we support the switch to Merit Selection for Pennsylvania’s appellate judges.

The Supreme Court of Illinois recently ruled that former White House Chief of Staff Rahm Emanuel satisfied the somewhat unclear residency requirements for inclusion on the ballot in the race for Mayor of Chicago. In covering the court’s deliberations on the question, the Chicago Tribune points out the inherent contradiction of an impartial judiciary that’s selected by partisan voting:

The Illinois Supreme Court justices deliberating the fate of Rahm Emanuel‘s bid for Chicago mayor are sworn to uphold the state constitution without regard for special interests, yet that same document requires them to run for election in an inherently political system.

While much of the high court’s work is done in relative anonymity, the pedigrees of the justices are fodder for debate whenever they tackle high-profile cases with political consequences — from deciding a close governor’s race to ruling on the district maps that determine which party will control the Legislature. (emphasis added)

The appellate courts in Pennsylvania are burdened with the same contradiction. Judges and justices are required to raise money, cultivate political capital, and campaign for votes. But after the election is over, they’re expected to put all of that aside and rule impartially, even on matters involving the political supporters and financial backers that made it possible for them to reach the bench in the first place.

As long as our appellate judges are forced into the business of politics, the taint of possible influence will linger over even their fairest decisions. And otherwise qualified legal minds, lacking the political clout to wage a successful campaign, have little hope of reaching the bench. Merit Selection would enable those judges to achieve their positions based on their qualifications, rather than their political skills and fundraising savvy. That’s why we think it’s a better way for Pennsylvania to choose its appellate judges.

Illinois joins Pennsylvania in that small group of states that elect all judges in partisan elections. It’s no suprise, then, that some judges in Illinois are engaging in an argument similar to one the Pennsylvania Supreme Court candidates had during the recent election. They are arguing about the role of money in elections and the extent to which it affects judicial independence.

The Daily Herald, a suburban Chicago newspaper, reports that three judicial candidates running in Kane County are refusing or limiting campaign contributions from attorneys.  John Dalton, one of the candidates refusing all attorney contributions explained:

“The citizens of Kane County have the right to a fair trial and an impartial judge. . .. Accepting contributions from attorneys would bring my independence and integrity into question.”

Two other candidates who declined to adopt the same guidelines also claimed to be guided by concerns about ethics and judicial independence:

“Isn’t Mr. Dalton really saying he can’t be impartial here?” [Leonard Wojtecki] said. “I know of no lawyer or judge who is going to throw away their career for a campaign contribution.”

Added [D.J.] Tegeler, a Geneva attorney: “My ethics are not to be bought. If I ever feel down the road I need to recuse myself, I’ll do it.”

But candidate Thomas Patrick Rice’s comments hit the nail on the head:

Rice, a Batavia attorney, called the debate “ludicrous” and a “ploy” for publicity. He said judicial candidates might as well refuse all donations, according to his opponents’ philosophy, because anyone could wind up in a courtroom at any time.

“I may be the only one who has the guts to tell you this, but you have to take the money,” he said. “Until we have (nonpartisan) merit selection, you have to have a campaign that costs money.”

That’s exactly right — when you have judicial elections, there’s no way to get money out of the mix.  The answer, then, is to get money out of the judicial selection system. The way to do that is Merit Selection.

In a feature on campaign financing, Chicago Tribune correspondent Tim Jones notes that special interest groups are spending millions of dollars on state Supreme Court races, “with the intent of electing justices who will advance or protect their financial interests.” Jones summarizes the fallout from increasingly expensive, partisan contests in Wisconsin, West Virginia and Illinois, and discusses the effect this dramatically increased spending has on the appearance of judicial impartiality.

Nationally, spending for Supreme Court races was $165 million during the 1999-2007 election cycles, up from $62 million over the previous decade, according to the Justice at Stake Campaign. There has long been discomfort in legal circles about judges seeking election to the bench, given the potential appearance of judges being beholden to campaign contributors with matters before the court. As the number of multimillion-dollar court campaigns grow, those fears are taking shape.

As contributions to judicial campaigns increase, fundraising prowess is quickly becoming a critical skill for an aspiring judge. Because the bulk of these campaign funds come from lawyers and organizations that often litigate in state courts, the public is left to wonder if campaign cash has an influence on judicial rulings. It’s time to eliminate fundraising and campaign contributions from the judicial selection process. The best way to do that is to switch to Merit Selection.

One of the big reasons we need Merit Selection is to get money and fundraising out of the process of picking appellate judges. How much do these elections cost? Last year four candidates running for two open seats on the Pa. Supreme Court raised $7.85 million. That’s a record in Pennsylvania. And, much of that money came from lawyers, law firms, and organizations — like unions and business organizations — that often have cases in the appellate courts.

This is a problem because in Pennsylvania (and other states) judges don’t have to step aside (“recuse” in legal terms) in cases where the parties or lawyers gave money to help them get elected. That means that a judge can make the decision in a case that involves a lawyer or party who gave money, even a lot of money, to his or her election campaign.

This is a key cause of the increasingly widespread public belief that campaign contributions affect decisions made in the courtroom. This is not a problem unique to Pennsylvania. Illinois, Wisconsin, and West Virginia have all recently been in the news because of cases involving big donors to Supreme Court justices’ campaigns.

We think the solution is to get judges out of the fundraising business. The best way to do this is Merit Selection.