judgesonmerit.org » Judges

The Benefits of a Nominating Commission

Shira Goodman — Wed, 14 Dec 2011 15:45:06 +0000

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.

What is Recusal Really For?

Shira Goodman — Mon, 28 Nov 2011 15:24:08 +0000

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.

Judges Work for the People

Shira Goodman — Fri, 25 Feb 2011 13:10:00 +0000

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.

Judicial Elections Threaten Judicial Independence

K.O. Myers — Thu, 03 Feb 2011 19:46:51 +0000

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.

A Different Kind of Money Problem in Tennessee

Shira Goodman — Fri, 14 Jan 2011 18:37:22 +0000

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.

Here’s to 2011

Shira Goodman — Fri, 31 Dec 2010 13:22:10 +0000

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.

The Disconnect Between the Courts and the Public

Shira Goodman — Tue, 28 Dec 2010 14:38:19 +0000

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.

We argue that the disconnect between judges and the public threatens the courts. We urge judges to assume the burden both of demystifying the courts for the public and understanding clearly how court policies and procedures will be perceived by the public:

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.

Take Another Look at those Cars

Caryn Steiger — Mon, 06 Dec 2010 16:00:40 +0000

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 Speaks Out on Gifts

Caryn Steiger — Mon, 06 Dec 2010 15:55:02 +0000

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.”

Money: the Cause of a Perception Deficit

K.O. Myers — Fri, 03 Dec 2010 19:44:33 +0000

The following is a guest post from Sekou Campbell, an associate at Fox Rothschild LLP in Philadelphia.

The O’Jays craftily described the power of money in their classic “For the Love of Money,” where they swoon, “money will make you…do things, do things, bad things for it.” In the aftermath of the Luzerne County scandal, Pennsylvanians have a unique understanding of how cash can make society’s most relied upon decision-makers do “bad things.” Of course, the vast majority of judges have integrity and comport themselves with ethical principles. Yet, few can dispute the power money has to taint the perceptions of both the judiciary and the body politic.

Recently, a cacophony of reports and editorials from the Philadelphia Inquirer, the Pittsburgh Tribune-Review, the Harrisburg Patriot-News, and the New York Times have profoundly questioned Pennsylvania Supreme Court policy regarding gifts: if judges may accept gifts from lawyers who appear before them so long as they disclose them. Hopefully, the Court notices and acts upon the near uniform condemnation of this policy.

Presents cast a specter of bias on even the most virtuous and fair judge. The judiciary should, at least, consider ways to mitigate this perception deficit. For instance, just as corporate boards form special litigation committees of disinterested directors when making decisions regarding derivative suits, so could the judiciary form a similar committee for recusals. Otherwise, the judiciary could adopt the ABA Model Code of Judicial Conduct 2.11 which requires the disqualification of judges who have received contributions from lawyers appearing before them. Of course, the judiciary would have to engage in discourse with itself and the public regarding its recusal rules. However, requiring mere disclosure, without more, undermines the legitimacy of the venerable Pennsylvania bench.