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Indiana’s IndyChannel.com reports that a judicial campaign fundraising flier appears to equate financial donations with favorable rulings. The flier advertises an event to support the re-election of Marion Superior Court Judge Becky Pierson-Treacy. Among the “suggested contributions,” are “$150 ‘Sustained’”; “250 ‘Affirmed’”; “500 ‘So Ordered’”; and “$1,000 ‘Favorable Ruling’”.

According to former Judge Gary Miller and others, the flier gives the impression that justice is for sale. As Miller states, such a flier, even if it were a joke, is not appropriate for a judicial campaign. A spokeswoman for the Indiana Supreme Court agrees; “We require our judges to act in a manner that promotes confidence in the judicial branch. They must always act with fairness and impartiality. Even the appearance of impropriety, or the appearance that something is unfair, is against the judicial canons.’” Indiana has reason to be upset by this flier, particularly when the public may have already suspected a connection between campaign fundraising and judicial rulings. The advertised fundraiser has since been canceled.

An editorial in the Fort Wayne Journal Gazette suggests that Merit Selection might be the solution to the problems of money and politics influencing judicial selection. Faced with a mixed system in which some judges are elected in partisan contests, others run in nonpartisan elections and still others reach office through a Merit Selection system, the editorial opines “Hoosiers and their lawmakers should reconsider whether having judges run for office is really the best way to achieve justice.”

The editorial focuses on Allen County—which contains Fort Wayne. That county had appointed judges until the 1980s, “when a state lawmaker – with little public demand – changed the method to a non-partisan election.” Further:

“[I]ncumbent Allen County judges are rarely challenged and seldom – if ever – defeated. More telling, many judges retire midterm, when their successor will be appointed. Allen County has a judicial nominating commission that examines applications and submits three names to the governor, who appoints the judge.”

The editorial notes that this system could be easily adapted into a Merit Selection system to fill all judicial posts. The editorial board is on the right track—Merit Selection is worth a look in Indiana counties that elect their judges, and in plenty of other places as well.

Sheila Seuss Kennedy, a professor of law and public policy in Indiana, published an op-ed in the Indianopolis Star making the case against electing judges:

What’s wrong with electing judges? The answer to that question involves the nature of a judge’s job.

The ideal jurist should have solid legal skills, a “judicial temperament,” and unquestioned integrity. Most importantly, he or she must be guided by the rule of law — not the desires of the electorate. People who argue for judicial elections in order to get judges who will be “responsive to the voters” do not understand the role of the judiciary in American law. . . .

In our system, the legislature is the branch of government accountable to the electorate; the judiciary is accountable to the constitution and the law.

This makes sense to us. Judges are different, and it only stands to reason that they should be selected differently than other public officials.  After all, if you treat judges like all other public officials until the moment they take the bench, what guarantees that they will be treated and will act differently from other public officials when they are sitting on the bench?

Kennedy also notes that the electoral process and its emphasis on fundraising cause real concern for the public:

When I was practicing law, it wasn’t uncommon for clients to express apprehension about going to court. Among their concerns was the relationship between the judge and the lawyer representing the adverse party: Were they poker buddies? Had the lawyer contributed to this judge’s campaign? Did he or she practice with a law firm that had hosted a fundraiser for the judge?

It is disturbing that so many people share these worries.  The electoral system fosters these concerns and does nothing to alleviate them.  Merit Selection gets judges out of the fundraising business and recognizes the unique role judges play in our system of government.  It’s time for a change.

Addressing the St. Joseph County Bar Association in Indiana, retired United States Supreme Court Justice Sandra Day O’Connor shared her wisdom and experience regarding judicial elections and declared that Merit Selection was the solution.  As the Chicago Tribune reports, Justice O’Connor explained that the money involved in judicial elections leads the public to have less confidence in judges:

“I hope that lawmakers will be cautious and look at what an independent judiciary has meant to this nation,” she said. “Our judges must be capable of staying above politics if they’re going to serve the function of making impartial decisions.”

This makes good sense.  We hope Pennsylvania will heed Justice O’Connors words.

Thanks to the Indiana Law Blog for posting excerpts from Indiana State Bar Association President Bill Jonas’ pro-Merit Selection editorial. In an eloquently written piece, Jonas argues:

Now is the time for Hoosiers to speak out in favor of a uniform, non-partisan judicial selection method to insure judicial independence for all of Indiana.  If we succeed in this endeavor, we will have taken an important step toward “the more perfect union” that our forefathers envisioned.

Jonas cites the Caperton case as well as the rising costs of elections in nearby Ohio, Michigan and Illinois.  He then refers to two recent cases in Indiana that raise questions about the impartiality of judges.  He explains:

Indiana’s judges are the umpires on whom we rely to make the often close and difficult calls in disputes that can be the focus of intense public interest and passionate debate.  It is imperative that our umpires be free to make calls based on whether the ball is in the strike zone . . . without regard to who the pitcher is, who the batter is, or who the opposing managers are.

This makes good sense, and Jonas believes elections can no longer achieve this ideal. He urges adoption of  a Merit Selection system with a retention component.  We believe a Merit Selection system for Pennsylvania’s appellate courts will also accomplish what Jonas anticipates: “judges free to make rulings on the facts and the law, and not out fear or in search of favor.”

Over at CoffeeSpoons, blogger Matthew Jones in Indiana makes a good case for why electing judges is a bad idea.  Arguing in favor of maintaining Merit Selection for the Indiana Supreme Court, he observes:

My primary reason for opposing [judicial elections] is that it would require potential justices to wade into the muck and mire of the political arena.  They would have to organize extensive fundraising campaigns.  They would be forced to solicit massive campaign contributions, and to court the approval of special interest groups who would hope to gain from the election of favorable justices.  Rather than exercising only their independent legal judgment, they would have to be concerned about following the political mood of the day, and about pleasing their campaign supporters.  All of this strikes me as being inherently bad.

Sound familiar? This is how things work in states, like Pennsylvania, that elect their judges.  Commenting on how judicial elections look from the outside, Jones writes:

Our neighboring states that have systems for elected appellate judges have seen literally millions of dollars poured into the campaigns of candidates by special interest groups hoping to influence election outcomes.  That situation has to undermine the public’s confidence in the impartiality of the judiciary.

Well, he’s right. As we reported yesterday, a USA Today poll revealed that 89% of those surveyed are concerned about the influence of campaign contributions on judges.  It’s time to get judges out of the fundraising business.

Advance Indiana tips us off to an effort to expand Indiana’s Merit Selection system.  Indiana’s appellate judges are chosen by Merit Selection, but the county judges are selected in a variety of ways.  There is a move to make the Merit Selection system uniform throughout the state, for all judges.

According to the report, the Judicial Conference of Indiana has written a report advocating the adoption of Merit Selection and is waiting for the Supreme Court’s approval.  Marion County Superior Judge Mark Stoner, co-chair of the Judicial Conference’s strategic planning committee explained why he supports the change:

“[The current system] results in lawyers who have to be already wealthy to run, and the appearance about all these judges raising that much from lawyers,” he said. “We simply don’t want a system where a litigant feels they’ve won or lost because their lawyer gave or didn’t give as much as the other side.”

Although we are advocating Merit Selection only for the appellate courts in Pennsylvania, we understand the concern in Indiana that the problems of money and politics infect even local court races.  Advance Indiana concludes by noting:

Of all the government reform measures the legislature might take up this year, I can think of none more important than merit selection. I hope the legislature ignores the pleadings of self-serving political leaders in both parties and pulls the plug on an outdated and unfair political system for choosing judges. As the Indiana Lawyer warns, “Nothing less than the credibility of our judiciary is at stake.”

An editorial in the South Bend Tribune decries the huge amounts of money being spent in neighboring Michigan for a single seat on the Supreme Court. It is anticipated that nearly twenty million dollars will be spent on this campaign, and at this point, the Democrats haven’t even named a candidate to challenge sitting Chief Justice Clifford Taylor. The editorial notes, “It’s lucky that justice is blind to this mess.”

Observing that the campaign is the focus of a battle over tort reform efforts, the South Bend Tribune boasts “Indiana, of course, sidesteps this particular problem by appointing its Supreme Court justices.” In fact, Indiana’s appellate courts are selected through a Merit Selection process, with a nominating commission, appointment by the governor and retention elections.

The editorial concludes by recognizing that Indiana’s system might not work for every state, but recommending that Michigan “take a look at revising the selection process for its high court so that the best candidate is determined by his or her qualifications and the input of citizens — not by special interests seeking an advocate.” This is good advice for Michigan, and for Pennsylvania, where we elect all our appellate judges in partisan elections.