Apr 16 2014

Politics Over Principles in Race for Chief Justice

The race for North Carolina Supreme Court Chief Justice got a little more testy this weekend, as Republican candidates for the seat, Superior Court Judge Ola Mae Lewis, and Supreme Court Justice Mark Martin, traded barbs at a political event. Judge Lewis called into question the high court’s productivity, specifically highlighting that her opponent, Justice Martin had only written 5 opinions in the previous year. Conversely, Justice Martin touted his experience on the court, while taking a veiled swipe at Judge Lewis’s Republican bonafides, based on her past work for Democrats.

 

Although this back and forth may have been great political theater, it bears no relation and has nothing to do with who will make the best Chief Justice. The job of a judge is to uphold the law and protect the constitution – not to keep campaign promises or represent the interests of the voters who elected them. No matter who wins on election day, the citizens of North Carolina lose, because their new Chief Justice will be the best politician, not necessarily the best Chief Justice.

 

Here in Pennsylvania, we too use elections to select our judges. However, we shouldn’t have to make the same mistakes as North Carolina in order to recognize the need to change our system.

 

Instead of constantly putting judicial candidates through the rigor of meaningless campaigning, judges should be selected based on their qualifications alone. Moving to a merit selection system does just that. In addition to removing the money and negative campaigning components of electing judges, merit selection allows potential judges to be thoroughly vetted and chosen based on their qualifications, experience, and reputation for honesty, integrity and fairness. Most importantly, however, merit selection benefits Pennsylvania and the nation, by ensuring a more independent and impartial judiciary, free from the perception of bias that comes with expensive, partisan judicial elections.

 

It’s time to take campaigning out of judicial selection and choose our judges based on their merit.

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Apr 08 2014

A Better Way to Pick Judges

Published by under Merit Selection

It’s great to be a legislator in Virginia. You have control over judicial appointments and if you ever get bored in the General Assembly, there’s likely a cushy judgeship waiting for you.

Virginia is one of only two states in which judicial appointments are decided entirely by the legislature. This method of judicial selection has resulted in power politics spilling over into the states’ courtrooms.

In 2008, Norfolk County was left with three vacant judgeships for months as a result of a dispute between Sens. Ken Stolle and Yvonne Miller. A similar incident occurred in 2012 when conservative lawmakers delayed the nomination of Tracy Thorne-Begland’s nomination to Richmond’s General District Court because he was openly gay.

Additionally, Virginia lawmakers have been making courtrooms their retirement destinations. Judges are generally reappointed until they retire, and then enjoy a generous salary and state benefits. Lawmakers often trade-in their positions in the legislature for a cushy spot on the bench, further adding to the perception of an unfair judiciary.

Despite its apparent flaws, Virginia lawmakers have been unwilling to enact any changes to the states judicial election process. A measure that would bar legislators from accepting judicial appointments within four years of leaving the General Assembly was rejected. However, the General Assembly did approve the creation of twenty-seven new judgeships.

Judicial selection practices, such as the one in Virginia, create a ‘patronage’ system in which legislators have considerable control over judicial appointments. Legislators are given indirect control of the courts by their ability to choose judges. Gaining a judicial appointment then relies upon the “connections” that a candidate has in the legislature rather than his or her qualifications.

A better way of appointing judges is through merit selection. Under merit selection, judges are evaluated based solely on their credentials by a bipartisan citizen’s nominating commission consisting of lawyers and nonlawyers, which represent the diversity of the state. Once candidates have been screened, a short list is then sent to the governor who must nominate one of the individuals on the list. The judicial nominee must be confirmed by the Senate and then will sit for a shortened term before facing the public in a yes/no retention election. In this manner, nominees are chosen not for their personal relationships, but rather for their qualifications, experience and ability to fairly uphold the law. Merit selection increases public confidence in the judiciary.

Pennsylvania should see Virginia as a cautionary tale about the pitfalls of mixing politics with the judiciary. The current expensive, partisan election of Pennsylvania judges creates a negative public perception of politics influencing a supposedly independent and impartial judiciary. In order for Pennsylvania to preserve the public confidence of its judiciary, it needs to implement merit selection.

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Mar 25 2014

In the Interest of the Law

It’s been said before, ‘merit selection takes power away from the people to choose judges who represent them.’

But, that represents a fundamental misunderstanding of the role of a judge; judges should not represent the people who voted for them. Judges should represent the law and the ability to decide cases before them impartially.

Judges are expected to decide cases based on the facts and the law, not public opinion or campaign promises. In allowing lawyers, law firms and groups who often appear before the court the ability to donate to judicial campaigns, we risk the public perception that judges rule in favor of their supporters. This creates the impression that justice is for sale.

Merit selection allows citizens the opportunity for more meaningful participation in judicial selection. In reality, how much meaningful information is the public receiving about judicial candidates under the current judicial election system? The public is bombarded with numerous names (many of whom they probably never heard of) and the real worth of a candidate is lost beneath all the flashy political signs and slogans rampant in campaigns.

Under merit selection, the chaos of campaigning is removed thus allowing for more productive interaction between prospective judges and the public. Through the initial merit selection process, only the most qualified of applicants are given consideration for appointments. As members of the nominating commission, citizens are then able to engage in more meaningful consideration of nominees, rather then wading through lists of names. The public may also give input to the Governor before he or she makes the nomination and during the confirmation hearings before the Senate.

Most importantly, retention elections provide the public with another opportunity for engaged participation. Retention elections allow the public to decide whether a judge should stay on the bench based on the judge’s track record, not on his or her campaign capabilities.

The most important thing to remember is that while the public is still engaged through the nominating commission and retention election process, the law is still the primary concern. Both the nominating commission and the retention election is concerned about the ability of candidates to objectively represent the law, not a specific interest group.

In essence, merit selection is not about taking power away from the people, rather it’s about providing the public with the best chance of having a fair and impartial judiciary.

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Feb 25 2014

Judges for Sale in North Carolina

Since 2004, more than 80% of judicial candidates in North Carolina have used public financing to fund their campaigns. This program gave a grant to judicial candidates who raised money from small donors and agreed to strict spending limits. However, after nearly a decade on the books, the program was eliminated by North Carolina lawmakers, opening the door for big money to flow into judicial campaigns in the state.

 

Individuals in North Carolina can now contribute up to $5,000 to a judicial candidate, up from $1,000; and without public financing, judicial candidates will rely heavily on big donors, in order to win elections. According to the national institute on money in state politics, 78% of North Carolina’s supreme court elections were monetarily competitive under public financing, as opposed to only 25% prior to it. With the elimination of this program, judicial seats will go to the best fundraiser, rather than the most qualified candidate, which will only undermine public confidence in the judiciary.

 

Big money exacerbates the already problem-laden practice of judicial elections. When judges are forced to court big donors in order to be elected, it puts them in a position they are unaccustomed to, and creates the appearance of impropriety. Further, it is difficult for the public to have faith in an impartial judiciary, when lawyers, law firms, and corporate interests are allowed to buy influence in it. Public financing greatly reduced the impact of big money in North Carolina’s judicial elections, now with it it gone, the state’s upcoming judicial elections may be one example to the nation, of just how much justice really costs.

 

Pennsylvania needs to get its act together and reform our own judicial selection model. The bipartisan judicial merit selection legislation, currently pending in the House, will guard Pennsylvania judges from the insidious effects of big money, and assure Pennsylvanians that our judges are not for sale.

 

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Jun 28 2012

The Real Reasons Pennsylvanians Want to Find a New Way to Select Judges

Published by under Opinion

In a letter published in the Harrisburg Patriot-News, PMC’s Lynn  A. Marks points out the problems in Dan Pero’s recent op-ed about Merit Selection.  Pero focused on the fact that even Merit Selection systems cannot totally eliminate politics from judicial selection. While conceding this point, Marks pointed out the big issues that Pero ignores and the real reasons Pennsylvanians want to find a new way to select judges:

Seventy-six percent of surveyed Pennsylvanians believe that campaign contributions affect judicial decision-making. In other words, the public believes justice is for sale. The same survey found that 73 percent believe that the most qualified candidates do not win judicial elections. This is the release of hgh at orgasem not HGH surprising. Elections are designed to reward the best campaigners and fundraisers, not the most qualified candidates.

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Marks further notes that by tabling the Merit Selection legislation, the House Judiciary Committee essentially voted against allowing the people of Pennsylvania to decide whether to change how we select appellate judges.  93% of surveyed Pennsylvanians want the opportunity to decide. Pero thinks the

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legislature serves the voters by tabling legislation and keeping the issue bottled in committee.  We disagree and  believe the legislature can show voters it trusts them by giving them the opportunity to decide for themselves whether there is a better way to choose judges.

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Dec 14 2011

The Benefits of a Nominating Commission

Published by under Opinion

As we noted earlier this week, there is some talk in Virginia of changing the way judges are selected. Currently, they are appointed by the legislature.  An editorial in the dailypress.com approves of the Lieutenant Governor’s proposal to use a commission-based appointment system and outlines the benefits of nominating commissions:

Judges should not be politicians. A commission-based selection process by a broad-based group that examines the experience and credentials of candidates, conducts interviews and evaluates candidates’ fitness for service is more likely to produce an prednisone antibiotics impartial and well-qualified judiciary than elections or legislative appointments.  A system that also includes retention votes makes judges accountable to the people at large for upholding the standards of integrity and conduct required by the position.

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These are some of the very reasons we believe Pennsylvanians should consider implementing a Merit Selection system for the appellate courts.  We hope the people of Pennsylvania will soon have the opportunity to weigh in on this issue.

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Nov 28 2011

What is Recusal Really For?

Published by under Judges

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 levitra mail no prescription 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.

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McElroy and Frost get it just right.

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Feb 25 2011

Judges Work for the People

In an op-ed in today’s Philadelphia Inquirer, PMC’s Lynn Marks and Shira Goodman argue that in the wake of the Luzerne County scandal, there remains a fundamental question for Pennsylvania to answer:

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What does it mean to be a judge?The answer should be simple: A judge is a public servant sworn to render judgment in legal cases without regard to self-interest, personal bias, public opinion, or political pressure.

Lately, this fundamental proposition has been overshadowed. But we must demand that it be followed by all Pennsylvania justices and judges, and any judicial behavior falling short of it must not be tolerated.

Marks and Goodman argue that distinctions between what is criminal and what is unethical hold little meaning when it comes to judges, because unethical judicial behavior has the potential to be as harmful as criminal behavior.  They further explain that something has been missing in the aftermath of the scandal, something that may seem obvious, but that needs saying:

There should be an unequivocal official statement that what the former judges did was an example of judicial misconduct of the highest order. It should be made clear to all Pennsylvanians that these men violated almost every rule governing the behavior of the state’s judges.

The authors follow this with a list of ethical constraints on judicial behavior in an effort to restate some basic truths about what Pennsylvanians should be able to expect of their judges.  The op-ed closes with a strong statement about the judicial role:

At its core, kids-for-cash was about judges ignoring who they worked for: the people. These judges abused the power with which the public entrusted them, using it to enrich themselves and their friends.

This is the polar opposite of what it means to be a judge. It must never be allowed to happen again.

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Feb 03 2011

Judicial Elections Threaten Judicial Independence

In the most recent edition of the Duquesne Law Review, Pennsylvanians For Modern Courts makes the case that partisan election of judges “creates special challenges to the ability of judges to achieve and maintain judicial independence.” Deputy Director Shira J. Goodman, Executive Director Lynn A. Marks, and pro bono attorney David Caroline collaborated on the article, titled “What’s More Important: Choosing Judges or Judicial Independence?” Citing academic research and public opinion polls, they argue that campaign contributions and political partisanship make it almost impossible for elected judges to serve without fearing accusations of bias. And recent loosening of campaign finance regulations will only exacerbate the problem in the future.

Readers with access to HeinOnline can read the complete article using the citation 48 Duq. L. Rev. 859.

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Jan 14 2011

A Different Kind of Money Problem in Tennessee

Something interesting is happening in Tennessee – where the Merit Selection system for choosing judges is again under fire.  The Times Free Press reports (hat tip to American Courthouse) that two sitting Supreme Court justices contributed to the Senate campaign of the opponent of a state representative who was vocal about wanting to change the judicial selection system.  The contributions were legal in Tennessee.  They wouldn’t have been in PA, which allows judges to make political contributions only when they are engaged in an election themselves (See Canon 7).

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Frequent Merit Selection critic Dan Pero asks why these contributions aren’t drawing the same fire as contributions to judicial campaigns:  “Why is there a perception that it’s impossible for judges to remain fair and impartial if they accept a campaign contribution, but no reasonable concern about bias is [sic] they make a contribution themselves?”

Perhaps surprising to Mr. Pero, we are very concerned about this.  Judges should of course have the right to vote like all other citizens, but judges do give up certain rights when they take the bench – this should include overt political or financial support in elections.

Judges should not be in the business of raising or making political contributions.  Even the Pennsylvania restrictions on judicial contributions do not go far enough – money and politics should stay out of the courtroom. They best way to accomplish that is to keep judges out of the electoral system – whether as candidates or political supporters.

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