Kolberg, who has served as magistrate at the court for 19 years and as an acting judge since 2002, was recommended over Rettich by the Montgomery County Republican Party Screening Committee in January.

But on April 14, the precinct captains in the court’s jurisdiction voted 23-4 to endorse Rettich.

Former Miami Twp. Trustee Dave Coffey, who is helping Kolberg’s campaign, said the April meeting was an “ambush.” Instead of focusing on judicial qualifications, Rettich supporters questioned Kolberg’s legitimacy as a Republican, Coffey said.

In addition to the political infighting, there are allegations that a Rettich supporter tried to get the retiring judge to convince Kolberg to withdraw, by threatening the jobs of current court employees.

Messham told the Dayton Daily News that Miami Twp. Trustee Deborah Preston told him April 16 that if Kolberg did not withdraw from the race, Rettich would fire all current court employees once he is elected.

Preston also told Messham that, if he brokered the deal to get Kolberg out of the race, he would be allowed to serve as a visiting judge at the Miamisburg court after he retires, Messham said.

Messharm said Preston never mentioned Rettich’s name, but said, “Bob, I’m only the messenger.”

Why is the endorsement of the County Republican Party causing such a scrap? Because of cold political reality; without a party endorsement, most judicial candidates in partisan races have a vanishingly small chance of reaching the bench. Endorsed candidates have a huge advantage in a party primary. If a candidate who fails to win a primary even has the option to run as an independent, he or she will be facing opponents who have the benefit of their parties’ assistance with campaigning and raising funds.

In a partisan judicial election, the endorsement of a party is invaluable. Party politics become more important than the experience and ability of the candidates. Qualified judges can reach the bench only if they’re also sufficiently skilled politicians. They must navigate the often contentious currents of party endorsements, and the often confusing ethical rules that try to balance the need for political campaigning against their impartiality on issues they might rule on once they’re elected.

We believe that Pennsylvanians deserve a system that gets appellate judges out of the business of raising funds and campaigning for votes. We think that skilled judges should be able to reach the Pennsylvania appellate bench on the strength of their experience, their ability, and their knowledge of the law, not their skill at winning political points. That’s why we support the switch to Merit Selection of appellate judges in Pennsylvania.

The close margin of the race brings new political issues to the judicial selection process – the likelihood of a recount and the potential for litigation. Once the vote count is official, either candidate may request a recount. Prosser himself acknowledged that: “There is little doubt there is going to be a recount.” If the margin is less than 0.5%, the state foots the bill. In a margin between 0.5% and 2%, the candidate who requests the recount must contribute $5 per ward. Recounts are expensive for the government, often costing more than $1 million, much of which will be paid for by the counties.

After a recount, the possibility remains that the issue could go to the courts. Not only would litigation bring more money into an already expensive campaign, it would continue to politicize the process. Under state law, Chief Justice Shirley Abrahamsom would appoint a judge to hear the case. Abrahamsom and Prosser have clashed on the court and publicly. If the case were to make it to the Wisconsin Supreme Court, it would be heard by a court with a 3-3 liberal-conservative split because Prosser would need to recuse himself.

The twists and turns of this election demonstrate the dangers of a judicial selection process that depends on money and politics. Now, even more money could be spent on a recount and ensuing litigation. Further problems may be caused by the direct involvement of courts making decisions about the next person to sit on the state’s highest court.

Clearly, money and politics have become dangerously intertwined in the judicial selection process. It is time to take the focus off of money and politics, and to put the focus on qualifications and ensuring fair and impartial courts. Merit Selection is designed to do just that.

This year’s contest, which sees self-described conservative Justice David Prosser up for re-election, is expected to be just as contentious. Wisconsin’s labor unions are making plans to oust Justice Prosser, as part of a planned push back against the recent passage of a bill stripping public unions of their collective bargaining rights.

Prosser’s opponent, former prosecutor JoAnne Kloppenburg, has received praise for her politically independent stance. Unfortunately, the intentions of the candidate often mean very little when races can be influenced by political party and interest group spending that’s completely out of their control. In the 2008 race, outside groups out-spent the candidates by almost 11 to 1, a margin which even alarmed the candidates themselves.

No matter how apolitical Kloppenburg remains, the unfolding narrative of the election is already becoming clear. The unions and the political left are promoting Kloppenburg as a weapon against the policies of Governor Scott Walker and the Republican-controlled state legislature. The pretense of nonpartisan elections has never been less accurate. Whatever your political views, the judiciary is diminished whenever a judicial contest is decided not on the qualifications and ability of the judges in question, but by political expedience and campaign spending.

Philadelphia County Judges Paula Patrick and Paul Panepinto were also nominated for the open Superior Court seat, but neither candidate was able to garner enough support to win the party endorsement. Both judges indicated that they planned to stay on the ballot.

Current Judge Johnny Butler, who was appointed to the Commonwealth Court by Governor Ed Rendell, has told party leaders that he won’t run in the primary.

The endorsements came a week after the Democratic State Committee announced its judicial endorsements.

Supporters of judicial elections like to talk about the will of the people. Yet, despite skyrocketing campaign spending, judicial elections traditionally fail to muster much interest among voters. Can an election that could remove an incumbent justice at the whim of 10% of the voters really be said to accurately reflect the will of the whole? Or is it more accurate to say that it measures which candidate raised campaign contributions and made political connections most effectively?

Through a complex series of contributions to political action committees and media consultants, plaintiffs firms directed nearly $950,000 to the campaigns of Republican hopeful Tracy Cary (who lost to Justice Mike Bolin in the June 1 primary) and Justice Tom Parker (who was re-elected to the court in November). Thanks to Alabama’s campaign finance laws, donations made in judicial primaries were kept secret until well after the general election.

The 2010 election may have marked a new approach, with Democratic backers funding Republicans as part of their political strategy, said GOP state chairman and new Speaker of the House Mike Hubbard of Auburn.

“I suspect that a lot of the races will be fought in our primaries,” he said. “The Democrats feel they can’t win in the general election, so they put up or fund a candidate in the Republican primary.”

Why would organizations that traditionally support Democratic candidates feel compelled to support Republicans in judicial primaries? Because partisan judicial elections are all about political connections and campaign fundraising. Who can blame plaintiff’s firms for feeling like they have to spend big bucks on judicial campaigns? The business interests that they litigate against certainly are. And if pumping that money into Republican primaries makes it more likely that they’ll be spending to actually put a candidate on the bench, then it sounds like a better investment.

When we select judges through partisan elections, these are the kind of calculations that determines who reaches the bench. Wouldn’t it be great if we could choose our appellate judges based on their experience, knowledge and qualifications, rather than their ability to work the political system, and raise lots of campaign money? That’s why we feel that Merit Selection is a better way to choose appellate judges in Pennsylvania.

An article in Monday’s West Chester Daily Local News points out the reality; partisan election of judges isn’t the model of public access that it’s touted to be. Before judicial candidates can get on the ballot, they have to worry about securing the nomination of their preferred party. For instance, take the candidates competing for the endorsement of the Chester County Republican Committee.

A nod from the committee is seen as almost certain assurance that the candidate will win the party’s nomination in the primary election, while failing to capture it spells the exact opposite.

Each of the candidates has already begun peppering the committee members with letters and telephone calls touting their own experience and qualifications for filling the judicial seats that were vacated by the retirements of Judge Thomas G. Gavin and Judge Ronald Nagle, both of whom have taken the role of senior judge on the court.

In order to get on the primary ballot as the party’s endorsed candidate, judicial candidates have to win a thumbs-up from a handful of political committee members, who are under no legal obligation to disclose their deliberations to the public.  As we pointed out in Tuesday’s post, to get the endorsement of the Philadelphia Democratic Committee requires a sizable political  contribution.

And the problem is only magnified for candidates at the appellate court level. Candidates for the Superior, Commonwealth and Supreme Court in Pennsylvania need the endorsement of a statewide political party to have any real hope of getting elected. Without those endorsements, judicial candidates are effectively locked out of the judicial selection process, regardless of their experience or ability.

By contrast, Merit Selection shifts the focus from a judicial candidate’s political savy, party connections, and fundraising prowess back to the aspiring jurist’s qualifications for the bench.  The best Merit Selection systems are specifically designed to ensure that the nominating process is open to the public. All of which makes Merit Selection a better way to choose appellate judges in Pennsylvania.

If you’re a fan of author John Grisham, you may recognize the plot of his latest legal thriller, The Appeal, which Grisham admits was inspired by the events in West Virginia.  And as rank as the fictional outcome or the real events may seem to fair-minded Americans, the same outrage could have been perpetrated in any of the thirty-nine states that still elect at least some of their judges in contested elections.

Ewegen notes that his state, Colorado avoids these problems because Colorado uses Merit Selection: “This system is infinitely preferable to letting rich litigators rig the scales of justice by paying millions to elect judges predisposed to their side to the courts that will decide the manipulators’ cases.”

Ewegen goes on to explain the Supreme Court’s decision in Caperton and concedes that the decision, combined with long-existing requirements that judges recuse if they have a direct financial outcome in the case may solve some problems.  But, he argues, “the real answer is for the thirty nine states that still elect judges in contested elections to adopt merit systems like Colorado’s.”

We agree and hope Pennsylvanians will be given the opportunity to decide whether to change the current judicial election system and adopt Merit Selection for the appellate courts.

According to the Cleveland Plain Dealer,  although the initial rule change followed public comment and was publicy announced, this time, the Court made secretly and did not publicize the reinstatement of the prohibition for nearly a week:  “Two weeks after passing a rule that would allow judicial candidates to align themselves with political parties for general elections, the Ohio Supreme Court without explanation or public notice has reversed its decision.”

We will keep our eyes open for more information about what led to the Court’s decision to reinstate the old rule.