judgesonmerit.org

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 not surprising. Elections are designed to reward the best campaigners and fundraisers, not the most qualified candidates.

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 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.

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 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.

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.

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 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.

McElroy and Frost get it just right.

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:

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.

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.

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).

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.

When we began the 2009-2010 legislative session, we hoped 2009 would be the last year Pennsylvanians would be electing appellate court judges. Unfortunately, that did not turn out to be the case, and 2011 will bring new judicial elections, including elections to fill a vacancy on the Superior Court and one on the Commonwealth Court.

But as we continue our educational efforts about the courts, judges and the problems inherent in judicial elections, our coalition for reform continues to grow and public support for change increases.  Legislation implementing Merit Selection for the appellate courts will be introduced in the new session, and we are confident that the growing public support will translate into legislative action.

Pennsylvanians are tired of the money and divisive politics that have come to characterize elections for the appellate courts.  Pennsylvanians want a solution to the money problem and don’t want to worry any longer that campaign contributors receive special treatment in the courtroom.

There is one solution: get money out of the courts by getting judges out of the fundraising business. The best way to do that is to implement a system that takes money out of the equation and focuses on qualifications — experience, temperament, knowledge, and a reputation for fair and ethical behavior. That system is Merit Selection.

Here’s to 2011.

We often write about why perception is so important when it comes to the courts.  We’ve argued that even if campaign contributions never affect a judge’s decision-making, the public perception that there is such an effect is strong enough to damage the courts.  In an op-ed in today’s Philadelphia Inquirer, we make that point more broadly, arguing that judges must work to understand public perception:

[J]udges know that the true power of the courts is rooted in the public’s perception and public confidence in fair and impartial justice. When that confidence is undermined – whether for good reason or not – the foundation of our justice system is shaken.

Judges need to be aware of public perception. This is NOT to guide them in how to decide cases – which must be done independently and without regard to what is popular or politically expedient. Rather, judges must be aware of how the courts’ operations and judicial conduct are perceived by the public. It is not sufficient to bemoan the lack of public understanding. Judges must work to understand what the public believes and why. Even if those beliefs seem unreasonable, judges must understand that they have a tremendous impact on whether or not the public has faith in its courts.

The Pittsburgh Tribune-Review this weekend published a letter to the editor from PMC. This letter came as a response to an article about the tax-payer paid leases for luxury vehicles driven by judges. Recognizing that appellate judges travel for court business, the letter explains that the practice is extravagant and should be reevaluated. The letter also points out the effect the policy has on public opinion of the courts: “It just doesn’t look right for public servants to be enjoying such a benefit, especially when the court system is working to do more with less…”

Any appearance of bias or impropriety on the part of judges damages the court system as a whole. Public confidence in the courts is vital to a working system, and any policies that undermine that confidence should be reevaluated.

PMC has been speaking out on the topic of gifts to judges. In a letter to the editor appearing on the New York Times website, PMC’s executive and deputy directors criticized the court rule allowing the acceptance of gifts with disclosure. The letter came in response to an editorial entitled “Untenable Judicial Ethics,” and both the editorial and the letter to the editor call for a change in the court rules. Prohibiting gifts could help restore public confidence in the courts: “People must believe that they get a fair shake when they stand before a judge. Nothing should be permitted that undermines that belief.”