judgesonmerit.org

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.

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

We’ve been talking about the poisonous influence of money in judicial elections for a long time.  Now, the candidates are talking about it, too.

According to John Micek over at Capitol Ideas, Supreme Court candidate Joan Orie Melvin made this a topic of her address to the Press Club today.  She complained about the $1 million contributed to the campaign of her opponent Jack Panella by the Philadelphia Trial Lawyers’ PAC, the Committee for a Better Tomorrow. When asked about the $125,000 she also accepted from the PAC, she “claimed there was no comparison between the money she accepted from the trial bar and the money her competitor received.”

But Orie Melvin’s initial characterization of the contributions to her opponent offers a more convincing take on the perception contributions to judicial elections create: “”It’s pay-to-play, it’s justice for sale.’” This is surely what the public sees when the money is discussed, and it doesn’t matter how much is at issue.  It’s the fact of the contribution that makes an impression on the public.

Micek concludes his post with a discussion with PMC’s Shira Goodman:

What matters. . . is the public perception that money buys access to courtrooms – period.

“In our mind, enough is enough already,” she said.

We’ve always tried to make the point that judges are different from other public officials. As such, they should be selected differently. The way it stands now, we treat judicial candidates pretty much like other candidates.  Doing so makes it harder for the public — and even the judges themselves — to recognize the special role judges play in our system of government.  The more we blur the lines before judges reach the bench, the more blurred the lines stay.  Putting on the robe can’t be a single magic moment.  The entire process of becoming a judge should speak to the special nature of the judicial function.  Money is poison.

PMC, the League of Women Voters of PA and the Temple University Beasley School of Law Student Bar Association co-sponsored a debate between the candidates running for the vacancy on the Pennsylvania Supreme Court.  The candidates, Superior Court Judges Jack Panella and Joan Orie Melvin, answered questions about campaign contributions, recusal decisions, the Luzerne County Courthouse scandal and the role of the Supreme Court in deciding cases and administering the court system.  Although the candidates agreed on several issues, their exchanges — particularly about this campaign — did become heated.

Read PMC’s press release about the debate.  For those who missed attending live, the debate will be televised on the Pennsylvania Cable Network (PCN) Sunday Oct. 25 at 4:00 pm; Monday Oct. 26 at 10:00 pm; Thursday Oct. 29 at 10:00 pm; Sunday Nov. 1 at 3:00 pm; and Monday Nov. 2 at 4:00 pm.

Tomorrow, Thursday October 22, PMC is co-sponsoring (with the League of Women Voters of PA, the Student Bar Association of the Temple University Beasley School of Law, Temple Law Republicans and Temple Law Democrats) a debate between the Supreme Court candidates.  Some have questioned why we are doing so in light of our efforts to replace judicial elections with a Merit Selection system for the appellate courts.

The answer is simple.  As long as Pennsylvania continues to elect judges, it is part of PMC’s mission to educate voters and provide resources that assist them in making decisions during judicial elections.  We sponsor candidate debates; publish lists of questions for voters to consider and identify resources that can provide answers; and participate in other programs aimed at educating voters.

We hope that by doing so, we help voters feel more prepared to make critical decisions about who should serve on our courts.  In addition, we believe that as voters learn more about the process, they will come to realize that electing appellate judges in partisan contests just doesn’t make sense.

We hope you will join us tomorrow at noon at Temple University’s Beasley School of Law for the debate between candidates Jack Panella and Joan Orie Melvin.  More information is available here.  For those who can’t join us in person, PCN (the Pennsylvania Cable Network) will be airing the debate repeatedly in advance of the election.  The schedule includes the following airtimes: Sunday Oct. 25 at 4:00 pm; Monday Oct. 26 at 10:00 pm; Thursday Oct. 29 at 10:00 pm; Sunday Nov. 1 at 3:00 pm; and Monday Nov. 2 at 4:00 pm.

The Legal Intelligencer today examines (subscription required) the sources of the recently reported contributions to the election campaigns of Supreme Court candidates Jack Panella and Joan Orie Melvin.  Most interesting to us is the focus on one particular contributor and the motivation for its contributions.

The article notes that most of the money reported by both campaigns in this cycle came from a single source — Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers Association. This worries some observers:

“I just think too much money from a single organization is not a good thing,” said Rob Byer, a former Commonwealth Court judge and head of the appellate division of Duane Morris’ trial practice group. “The problem is, how do you get people interested in contributing the money needed for judicial elections unless they have an interest in the outcome of cases?”

Mark Tanner who leads the PAC explained the rationale for the existence of the PAC and its contributions:

Tanner said the committee was formed as a way for lawyers and law firms to support candidates without the ethical quandary that comes with writing a check directly to a candidate.

“A number of lawyers have contributed to that PAC with the goal of supporting the judges we believe in,” Tanner said. “Clearly Jack Panella received more in funding, but Joan Orie Melvin received funding, too. . . .”

“Certainly Judge Panella and Judge Melvin have staked out different ground regarding complaints brought by individuals,” Tanner said. “There were certainly opinions that showed Melvin was supportive of individual rights, but on balance we found that Judge Panella was more supportive of our view on how the justice system should operate.”

Tanner’s response only served to increase Byer’s concern:

“That’s totally antithetical to a fair system of justice,” Byer said. “Such statements don’t help the candidates they’re supporting.”

Organizational support for a candidate should be based on qualifications and experience, not whether the judge is more likely to rule in favor of a group’s interests, Byer said.

Why do individuals, organizations and PAC’s give to some candidates and not others? What motivates an individual or entity to contribute to a judicial candidate? And how do the answers to these questions affect the public perception of our courts — already severely diminished and inclined to believe that “justice is for sale?”

Campaign finance reports were due this week from Pennsylvania judicial candidates.  Judging from the Associated Press’ report, the money is rolling in. The AP reports that Democrat Jack Panella has raised $1.7 million this year, and Republican Joan Orie Melvin has raised $418,000 to date.  Unions and a political action committee of the Philadelphia Trial Lawyers’ Association account for a good portion of the reported contributions.

We have about five weeks until election day.  Looks like the 2009 judicial elections will be pretty expensive.