judgesonmerit.org

An editorial in the Pittsburgh Post-Gazette decries the growing problem of money in judicial elections that was reported in The New Politics of Judicial Elections 2009-2010:

Lady Justice is often depicted blindfolded to signify that outside influence does not tip the scales she holds to weigh the truth. Unfortunately, the scales are being tipped by special interests that pour money into judicial elections to get a desired result.

Too often it is the voters themselves who are blind to what is going on, yet this is a national problem and Pennsylvania is affected worse than most.

The editorial discusses the money raised in the 2009 Pennsylvania Supreme Court race between Justice Joan Orie Melvin and Judge Jack Panella, and notes that plaintiffs’ trial lawyers and the state Republican party provided much of the money that funded those campaigns.

The editorial then urges that the solution to the money problem is Merit Selection: “In a merit selection system of the sort proposed but not adopted in Pennsylvania, the corrupting influence of money would not be an issue.”  That’s true, because Merit Selection gets judges out of the fundraising business and stops the flow of money to judicial candidates from people and organizations that later appear before the judges they helped elect.

Merit Selection legislation is pending in the House and Senate.  Passage would set the stage for Pennsylvanians to have the opportunity to decide whether we should find a better way to select appellate court judges.  Without reform, we are left with the alternative described in the closing words of the editorial: a Pennsylvania where “politicians and public alike wear self-imposed blindfolds and pretend only to hear banging gavels, not cash hitting the scales of justice.”

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.

The Philadelphia Inquirer today called for judicial selection reform, arguing that “The case for reforming the way Pennsylvania selects its judges keeps getting stronger.”  Citing PMC’s analysis of the fundraising and spending in the 2009 Supreme Court election, the editorial focuses on the poisonous role of money in judicial elections:

It’s the troubling influence of campaign fund-raising that continues to create the most concern about electing judges in head-to-head partisan contests.

Most Pennsylvanians say they suspect that justice is for sale because candidates for judgeships have to raise campaign funds. The big-spending 2009 Supreme Court election between Republican Joan Orie Melvin and Democrat Jack Panella did nothing to restore their fraying faith in an impartial judiciary.

The Inquirer urges action, and we hope the call is heeded:

The course for state policymakers is clear: Step in and reform judicial selection, or continue to preside over a system that erodes public confidence in justice as it’s dispensed in Pennsylvania.

Pennsylvanians for Modern Courts today announced that the 2009 Supreme Court election between Republican Joan Orie Melvin (the winning candidate) and Democrat Jack Panella is likely to set new fundraising and spending records.  The final numbers are not yet in, as candidates can continue to raise funds until the end of the year.  But we can now report that the Supreme Court election cost at least $4.5 million, and PMC believes the total is significantly higher.

PMC’s press release documents fundraising and spending by the candidates’ campaigns, but notes that although they together raised and spent over $3.6 million, that is not the whole money story.  Instead, we found it necessary to research who else was spending money on the election.

The answer was political bodies, incuding the state Republican Party, the state Democratic Party, and the Republican Senate Committee.  In fact, the state Republican Party directly funded Judge Orie Melvin’s television campaign, to the tune of at least $975,849.  This means the state Party outspent the candidate’s own campaign.

Reports also reveal that from January 1, 2009 until November 23, 2009, the state Republican Party spent at least four million more and the state Democratic Party spent close to $2 million. Although the parties were not required to identify the candidates on whom they spent money, it seems reasonable to assume that a good portion of that six million dollars was directed to the Supreme Court election.

Pennsylvania had the nation’s most expensive Supreme Court elections in the 2007-08 election cycle, and the available data is leading elections experts to predict that Pennsylvania will again earn that title for 2009-10.   As PMC’s Lynn Marks explained, “Pennsylvanians should not take pride in leading the nation in spending for judicial elections.  Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

The editorial board of the Reading Eagle makes a strong case to move to Merit Selection of judges in an editorial published today. The paper cites the record amount raised to date by Judge Jack Panella ($2.35 million), and that the total raised by both campaigns is expected to total over $4 million by the time final reports are due on February 1, 2010.

In fact, the numbers do not reflect the true amounts raised by the candidates. As we’ve reported on previously (here, here, and here, for example), the widely reported amounts raised in elections typically represent only money contributed directly to the campaigns of the candidates, and not third party and political party money spent directly on the election. Election observers will note that all of Judge Orie Melvin’s television commercials were paid for by the Republican Party, and thus represent a huge sum of money not reflected in her campaign’s reported contributions and expenditures (Panella’s ads were paid for directly by his campaign).

PMC’s Lynn Marks was quoted as saying why all of this is so troubling:

[T]he money comes from lawyers, law firms, unions and businesses who frequently litigate in the state courts. . . . These are not the types of records Pennsylvania should be proud of. But when you elect judges in partisan contests, the elections become more expensive, not less so.’”

The clincher:

Marks said nine of 10 Pennsylvanians polled by a state Supreme Court commission believe that judges are at least sometimes influenced by campaign contributions.

That’s no way to run an election for the state’s appellate court system. There has to be a better way, and there is. And it is nothing new. In fact former Gov. Tom Ridge, before he left office to join President George W. Bush’s Cabinet, urged the Pennsylvania Legislature to begin the move toward merit selection of statewide judges.”

There are currently bills before the state house and senate proposing a detailed plan for the selection of appellate judges based on merit. It’s time for the state to decisively take money out of the equation.

Pennsylvanians for Modern Courts broke the news earlier today that the current Supreme Court race has set a new fundraising record. Judge Jack Panella has raised at least $2,350,633 to date. This edges out the previous record set in 2007 by now Justice Seamus McCaffery. See the Press Release here. You can find the candidates’ finance reports on the PA Dept. of State’s Campaign Finance Reporting page (NOTE: Judge Panella’s cycle 5 reports are not yet on the website).

The candidates’ war chests may continue to rise after the election, as they have until the end of the year to raise money for their campaigns. As a point of reference, in the 2007 race, the two winning candidates, Justices McCaffery and Todd, raised over $330,000 and over $650,000, respectively, in the two reporting cycles after the election. Of the two losing candidates, one raised over $340,000, and the other raised just under $100,000.

We’ve been reporting (see, e.g, this post, and this one, and this one) about the increasingly nasty tone of the Supreme Court contest between Joan Orie Melvin and Jack Panella. A highlight has been the negative ads aired by each candidate.  Some have charged the candidates with airing misleading ads.  In fact, the candidates have pointed fingers themselves, accusing each other of crossing the line when it comes to these ads.  Now, FactCheck.org highlights this campaign in a report entitled “Court Watch: Pennsylvania Slime.” Just another reason for Pennsylvania to give some more thought to whether electing judges in these expensive, partisan, divisive contests is the right way to go.

Peter Decoursey, Capitol Wire Bureau Chief, asks (subscription required) “Where’s the Public Value” in the current Supreme Court Election.  After discussing the traditional low voter turn-out for judicial elections and the difficulty voters have in getting information relevant to deciding who should serve on the bench, Decoursey concludes:

So you have an election for this important court, whose decisions affect the lives of people every day, and who have a penchant for disallowing legislation. And it’s an election where four out of five Pennsylvanians will sit on their hands. And that one in five or less who does vote won’t know much about either candidate.

Decoursey notes that both candidates — Republican Judge Joan Orie Melvin and Democratic Judge Jack Panella — are qualified to serve on the Supreme Court. He also describes their current advertising war which has turned this campaign nasty and divisive in its homestretch: “And now that both campaigns are acting like campaigns, each said the other’s attacks violated judicial ethics canons.” We’re left, then, with an ugly campaign that is not even likely to bring out the voters.  So, Decoursey asks, what’s the point?

He boils this question down to a basic one (and one we’ve been asking for quite awhile): why are we electing Supreme Court justices?

Since both Melvin and Panella are clearly the type of candidates who would get appointed to a Supreme Court slot if we did it that way here, you have to wonder: what is the value of this election?

Few will vote with any real knowledge of how the future rulings of Panella and Melvin may differ. Few will vote, period. . . .

So we would get the same choice of candidates, but miss out on the unseemly fund-raising from lawyers who will appear before them later, and the wonderful negative ads. . . .

So what is the value of this election? Unlike a presidential or gubernatorial or congressional election, nobody knows the candidates or issues. No issues get vetted or get momentum. There is no real public debate of any value.

And after someone wins on Tuesday, nobody will really know why they won.

It’s not clear where the value lies in this process.

Decoursey has really said all that needs saying.  That leaves us with just this thought: isn’t it time to make these important decisions in a manner that reflects how important they are? Elections aren’t working; Merit Selection is the answer.

John Baer of the Philadelphia Daily News argued in his column earlier this week that: “THE NASTY RACE for state Supreme Court is making yet another strong case for not electing statewide judges.” Baer notes that the recent dispute between Supreme Court candidates Jack Panella and Joan Orie Melvin over campaign contributions and their current tv ad war (we posted about these ads yesterday) is strong evidence that the way we select judges needs to change.

First Baer picks apart a Panella ad claiming that Melvin is dangerous for women, especially when it comes to their healthcare decisions:

[W]hen I ask, I’m referred to a May Superior Court case involving consensual sex between a physician and a female patient with psychological problems who says she got worse thereafter.

The court ruled in the woman’s favor, suggesting she might well have a case of medical malpractice. Orie Melvin dissented.

Sounds bad. But the dissent was based on interpretation of law as applied in similar cases and suggested that while the (general practitioner) doc’s acts were “unethical,” they don’t constitute medical malpractice. A woman, former Judge Maureen Lally-Green, wrote the dissent and Orie Melvin joined it.

Seems a stretch that disagreeing on points of law in a case of consensual whoopee endangers women’s rights and safety.

Then Baer turns to the Orie Melvin ad that claims Panella is dangerous for children because he served on the Judicial Conduct Board when a complaint related to the Luzerne County scandal was filed:

[Orie Melvin's ad] all but paints [Panella] as personally shackling, imprisoning and feeding gruel to the victims. “Jack Panella could have stopped the abuses,” her ad says.

It’s just that the Associated Press last month quoted the U.S. attorney prosecuting the case as saying the board acted properly in ’06, quickly forwarding an anonymous complaint. And yesterday, Panella’s campaign released a letter from five former board members saying the same thing. Seems a stretch to lay the collapse of a county system at the feet of a single state judge.

Finally, Baer mocks Orie Melvin’s claims of being a reformer: “Orie Melvin insist[s]“I’m no insider” (which is like Bret Favre saying he’s a rookie since he’s on a new team).”

Baer shifts responsibility back to we the people to do something about all this: “Ask yourself if there just might be a better way to pick the people who sit on our highest court.”

Good question, John.  If voters are honest with themselves, they know the answer is yes. Elections aren’t working; it’s time for Merit Selection.

An editorial in the Times-Tribune (Scranton) makes the case for replacing judicial elections with Merit Selection for the appellate courts.  Exhibit A is the current partisan — and in the last few days nasty — race between Republican Joan Orie Melvin and Democrat Jack Panella for the vacancy on the Pennsylvania Supreme Court:

Judge Orie Melvin lamented during a recent debate that Judge Panella is heavily backed by trial lawyers, who have donated about [$1 million] to his campaign. But she has received about [$125,000} from trial lawyers, so the offense apparently is one of degree rather than commission.

That points to one of the key problems with appellate judicial elections: they are funded primarily by people who are likely to appear in court before the winning candidate, or who have frequent business before the appellate courts. . . .

There would be no large donors if judges were appointed based on qualifications.

The editorial goes on to talk about how the electoral process overly politicizes judges who are supposed to be above politics.  Focusing on the upcoming legislative redistricting and the political parties’ emphasis on the importance of the Supreme Court election (see, e.g., Karl Rove ‘s piece in today’s Wall Street Journal) and the ultimate numbers of Republicans and Democrats on the Supreme Court, the editorial argues: “That shouldn’t matter, but in Harrisburg it’s all that matters.”

Finally, the editorial reminds us that voters often lack relevant information about the candidates, therefore leading to random and irrelevant factors such as ballot position, county of residence, gender, name recognition, and political party influencing who reaches the bench.

The Times-Tribune closes with this impressive claim: “Because we favor merit selection, The Times-Tribune does not endorse appellate judicial candidates.” We appreciate the support for Merit Selection and thank the editorial board for clearly demonstrating why this current election makes the case for reform.