judgesonmerit.org

The Washington Post’s fashion editor, Robin Ghivan, offers some real wisdom about our justice system in her commentary on the U.S. Supreme Court’s term-opening photo.  Observing that except for a lacy neckerchief added by Justice Ginsburg all of the justices stuck with basic black robes (no gold bars as former Chief Justice Rhenquist sported), Ghivan reflects on the powerful message of the black robe:

In donning the robes, the justices make a visual promise that they’re leaving personal idiosyncrasies, prejudices and desires outside the courtroom. They have tamped down individual preferences in service to the greater good, the general public . . . the law. The robes acknowledge that the justices have shed distractions in favor of objectivity, fairness and a common, high-minded purpose. The law is their religion. That’s where they place their faith. Their piousness may be imperfect — they are human, after all. But true devotion is worth striving for.

That pretty much sums up the ideal of fair and impartial judges.  And Givan is correct: the simple black robe is an excellent symbol for that ideal.  And that symbol sends a message both to the judges  and to the public:

The unadorned black garment telegraphs to the common man that he has a fighting chance in court. He’s not seeking justice from a ruling class or a royal family. He’s just coming before other men and women. The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don’t matter.

This is the system we have set up; the judicial robe imparts great power, but that power comes with serious obligations.  We should remember that the robe symbolizes the unique positions of judges in our system. As Ghivan concludes:

The basic black robe is fashion perfection. It sends a singularly powerful message: I am here to uphold the law, without prejudice.That message should stand alone. It does not need to be accessorized.

In an op-ed in the Philadelphia Inquirer, Drew F. Cohen argues that Pennsylvania must change the way we pick judges, and he offers an unlikely  model:  Iraq.  Cohen points to the issues that concerned the U.S. State Department when helping to form the Iraqi judiciary: “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylvania.”

We need not look so far away for a better judicial selection model.  Many states have been using Merit Selection for years to ensure a fair, qualified, impartial judiciary.  But Cohen’s comparison is certainly interesting.  In Iraq the High Judicial Council, an independent body, vets and appoints potential judges.  Once selected, the justices get a one-year probationary period.  If they pass a comprehensive performance review at the end of that year, they can be confirmed until the mandatory retirement age of 63.  Cohen compares this to the Merit Selection legislation pending in Harrisburg:  A 14-member citizens nominating commission would evaluate candidates and recommend the most highly qualified to the governor.  The governor would nominate from this list, and the nominee would be subject to Senate confirmation. If confirmed, the judge would serve a four-year term before standing for retention where Pennsylvanians would vote on whether the judge should serve a ten-year term.

Cohen notes that electing judges — and modern judicial elections in particular — don’t fit with our ideals of what courts and judges should be:

When the Declaration of Independence was signed on Chestnut Street, no state had seriously contemplated popular judicial elections. . . . Modern judicial elections are a far cry from the unbiased, dispassionate races originally envisioned by their supporters. Pennsylvanians are exposed to judicial campaigns replete with vitriolic attack ads, parasitic special-interest groups, and seven-figure fund-raising efforts, tarnishing the robes ultimately donned by the victors.

It seems Iraq has realized the special role judges play in a democracy:  judges must be faithful to the law, not to any particular constituency or campaign supporter. People must be confident that when they come to the courts for justice, the judges will be fair and impartial.
Cohen closes with this call to action:  “With Iraq’s judiciary leaving Pennsylvania’s in the rubble of yesteryear, it’s time for Harrisburg to make merit selection a reality.”

The votes are in. And the unofficial totals show that Joan Orie Melvin has been elected to the Supreme Court.  The top three vote-getters for the Superior Court vacancies were Judy Olson, Sallie Mundy, and Paula Ott. The returns for the fourth seat are still too close to call, with Anne Lazarus and Robert Colville in a tight race for the seat.  The two Commonwealth Court seats will be filled by Patricia McCullough and Kevin Brobson.  Results can be found at the Department of State’s Election page.  We’ll be posting about the election throughout the day, so check back.

There are many judicial seats up for election, including a seat on the Supreme Court, four seats on the Superior Court and two seats on the Commonwealth Court.  In addition, many trial level seats are up for election, and judges across the Commonwealth are standing for retention. Visit PMC’s Current Elections page for more information, and don’t forget to vote!

Wait, did we say partisan judges? Isn’t the very term antithetical to the core principle of independent judges and an independent judiciary? Of course it is. But partisan judges are the necessary outcome of our current judicial election system because they are nominated by parties and run on party labels.

A column by Eric Heyl in today’s Pittsburgh Tribune-Review gives the chronology of the recent spate of “mud-flinging” in the Pennsylvania Supreme Court campaigns.  We think mud is a generous euphemism for what is being spread by supporters of the two candidates.

More importantly, though, the article asks why this contest has taken such a negative turn. The surface answer: “Orie Melvin and Panella are resorting to such tactics because polls indicate they are virtually tied, with a majority of voters still undecided.”  But why are voters undecided? Because,

“Strictly in terms of legal acumen, it matters not a whit which candidate wins. Both Orie Melvin and Panella are experienced jurists who were highly recommended by the state bar association. Presumably, neither would ever confuse torts for tarts and attempt to down a few as an afternoon snack.”

Who ends up on the bench is of great importance to us, because decisions judges make affect all of our lives. But if both judges are equally qualified, then why would this election matter at all? According to the people who are most invested in the outcome, as the article points out, the reason is because:

“Whoever wins Tuesday tips control of the seven-member court in favor of his or her party. Whoever wins gives that party a distinct advantage in the legal battles expected when new legislative district maps are drawn after the 2010 Census.”

We’ve heard it before in the last few weeks, “this is such an important race because it will determine the political balance of the Court in a redistricting year.” It is so important, in fact, that both candidates, directly or indirectly, are flinging so much mud that “the dry cleaning bill is bound to be steep.” And we just accept it.

The incredulity must be creeping in.

When did it become okay to count the number of “Ds” and “Rs” on the bench? We should be trying instead to get the fairest, most qualified, and most impartial judges possible. While partisan elections are a critical component of the legislative and executive branches, we must remember that the judiciary is not a political branch of government. But until we begin selecting our judges and justices based on merit, and stop the circus of campaign fundraising and advertising, the mud-flinging will continue, and the public will get nothing from the process but the perception that its judges are anything but impartial.

Well, let’s clarify that. You should vote on November 3^rd, and you should do as much research as possible about the candidates for the seven appellate-level court seats up for grabs this year. We even offer information about the candidates on our website here.   But that is because we have to work with the system we have, and this is a system in serious need of change. Pennsylvania is  one of only six states in which all judges are elected in partisan contests. This means, they are nominated by political parties and run on a party ticket.

Popular elections don’t make sense for judges, and partisan elections make even less sense.  Judges must have a great degree of skill and knowledge to do their jobs, and their decisions often have important and far-reaching consequences.  But they are not political leaders.  By requiring judges to run for office, however, we inadvertently require them to act like political figures, and often end up making selection decisions based on how well they can campaign and raise campaign funds rather than on their skills, experience and qualifications.

Imagine the following scenario. Your neighbor is running for judge on your political party’s ticket. You help her campaign, distribute flyers, and raise money.  Down the street, or across town, your business rival does the same for a candidate on his political party’s ticket.  Your candidate loses.  You and your rival then get into a contract dispute.  You and your rival land in court, and your rival’s candidate, now judge (or justice) presides over the case.  Sound like fun?

Judges are meant to be impartial.  They are supposed to make objective evaluations of the law to ensure maximum fairness to both parties.  They are not supposed to have constituents nor favor anyone because of personal opinions, political support or campaign contributions.   Elections force judges to focus on the wrong things. There is a better way to put judges in office (click to see our proposal for a merit selection system of judges – bills are currently before the state house and senate).

The calls for judicial selection reform in Pennsylvania in the wake of the Caperton decision continue.  This week, the York Daily Record and the Lebanon Daily News joined the call for Merit Selection:

[W]hy do we hold elections for [appellate court judges]. . . .

It’s a good question — one we have been asking in this space for years. We agree with reformers [who] have been suggesting we move to “merit selection” of judges.

The editorials argue that the Caperton decision should convince previously reluctant legislators to support Merit Selection:

[T]he U.S. Supreme Court recently provided the perfect “excuse”: The high court ruled in a West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats.

If Pennsylvania used a merit selection process — as proposed in recently introduced legislation — we wouldn’t have to worry about running afoul of that ruling and judges wouldn’t have to try to figure out whether a $50 donation requires recusal.

Good point — Merit Selection takes judges out of the fundraising business and eliminates concerns that a judge may feel “indebted” to a party or lawyer who helped finance the judge’s campaign.  We hope Pennsylvanians will recognize that Merit Selection is the solution.

In a commentary piece (subscription required) in the Legal Intelligencer and the Patriot-News, Chief Justice Castille highlights the Court’s dedication to restoring confidence in the justice system following the scandal in Luzerne County.

The Chief Justice writes:

As leader of the Pennsylvania court system, my top goal is for the citizens of this commonwealth to trust their judges and for judges at every level to deserve that trust.  It is of the utmost importance for any individual who faces any judge in a courtroom to have confidence that he or she will be treated fairly, and for all Pennsylvanians to have that same sense of confidence, because a sound court system is essential to our system of government — and to our very freedom.  How do judges earn the confidence of the citizens? We expect judges to be fair and impartial. We expect judges to be unaffected by either side or by outside influence. We expect that judges will not favor the strong over the weak or the rich over the poor. Above all, we expect judges to adhere to their oaths of office.

The Chief Justice goes on to outline steps taken to date to rectify the problems in Luzerne and to restore the public’s confidence.  He notes the work is ongoing and pledges that the Court “will do all in its power to ensure that justice is done fairly and honestly in Luzerne County and in every courtroom in this commonwealth every day.”

This is good news, and we applaud the Chief Justice and the entire Court for acknowledging that even an isolated scandal taints the entire judiciary.  The Chief Justice’s quote from Henry Ward Beecher highlights this: “‘Take all of the robes of all of the good judges who have ever lived on the face of the earth and they would not be large enough to cover the iniquity of one corrupt judge.’”

A Philadelphia Inquirer editorial about recent decisions by the Court of Judicial Discipline calls for a public referendum on changing the way we select judges in Pennsylvania:

[These cases] should serve as yet another rallying cry for voter referendums on judicial reform to switch to merit-based appointment for the city courts, as well as the state’s appellate bench.

We are advocating judicial selection reform only at the appellate level, but the Inquirer makes a good point about the relationship between the judicial selection system and the recent judicial discipline cases that have been in the news:

As cases like these expose judicial misconduct, citizens have to hope Harrisburg lawmakers will let voters decide on reforming judicial selection under the state constitution.

Merit-based appointment not only would focus on candidates’ qualifications more than political backing, but also would yield a more diverse bench.

Voters would get the chance to approve judges for additional terms, but they would have a better idea about those worth keeping and judges who should hang up their robes.

We hope that as Pennsylvanians continue to learn more about the courts and the judicial selection process, they will agree that it’s time to ask again whether we’re using the best system to choose our judges.

Sworn in this past Tuesday, Tennessee’s new – and first woman – chief justice, Janice M. Holder vocalized her support of the Merit Selection system known as the “Tennessee Plan.” In fact, the entire Supreme Court wants to keep Tennessee’s current system. As Holder explains:

This court is not in favor of partisan election in which judges are obligated to raise millions of dollars for campaigns. This court is in favor of the current principles that comprise the Tennessee Plan.

Tennessee’s Supreme Court judges know that Merit Selection works in their state and how vital it is to keep the current system. That system, as we’ve written, is scheduled to sunset next year — on July 1, 2009 — if it isn’t renewed or modified. We hope that Tennessee maintains its Merit Selection system, and believe that Merit Selection will provide the best way for Pennsylvania to select its appellate judges, too.