May 29 2014

Political Justice

Across the country, politics is quickly rearing its head in the nation’s courtrooms. Lawmakers are infringing more and more upon the independence of the judiciary. Lawmakers in Oklahoma, Missouri and Kansas have introduced bills that limit the power of the judiciary following unpopular decisions.

This phenomenon is made worse by increases in partisan financial support for judicial elections, which are also threatening the independence of the judiciary. Current judicial elections make it nearly impossible for judicial candidates to run without substantial donations to fund their campaigns. This has allowed partisan and special interest groups to have more influence on judicial elections through their funding of candidates. In North Carolina alone, special interest groups spent more than $1.3 million on the Supreme Court race, with $900,000 contributed from the Republican State Leadership Committee being used in attack adds against incumbent Supreme Court Justice Robin Hudson.

A recent study by Center for American Progress reports that states have failed to update their judicial recusal rules to reflect potential conflict of interests resulting from campaign contributions.

Political pressure coupled with the increasing campaign contributions leaves our judiciaries in precarious situations. Editorials in The Washington Post and The New York Times highlight the growing concern over the loss of judicial independence. The judiciary has long been seen as the branch of government most isolated from the partisan bickering of politics. Judges are expected to rule in accordance with the law, safe from threats of retaliation from lawmakers. It is this separation of powers and the belief in the objectivity of the law, which has made our judicial system what is today. If events like those in Oklahoma, Missouri and Kansas continue, our proud history of an independent judiciary could be at risk.

One way to push back against the pressure of politics and money is to change the way we select our judges. Moving from Pennsylvania’s current system of expensive, partisan judicial elections to the merit selection of judges would curb the influence of money and politics from our courts. Merit selection takes into account the candidate’s ability to uphold the rule of law rather than the candidate’s war chest or political affiliation. In merit selection, a nomination commission of private citizens vets judicial candidates, with the most qualified candidates being recommended to the governor for approval and senate confirmation. Once confirmed, judges will sit for a shortened term before facing voters in a yes/no retention election to determine if they are fulfilling their responsibilities as judges. This helps limit the pressures of politicians and their checkbooks that our judges currently face.

The events in Oklahoma, Missouri and Kansas should serve as a warning that we need to take action to maintain the integrity of our judiciary. Here in Pennsylvania, PMC is currently pushing for legislation to implement judicial merit selection, protecting both the integrity of our judges and our justice system. We need an independent justice system that works for the people––not the politicians–– and merit selection is the best way to achieve that goal.

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May 07 2014

Politicians in Robes?

Great news for state-level Republican judicial candidates throughout the country: they could be seeing a lot more financial support from their party! The Republican State Leadership Committee (RSLC) announced its plans to launch the Judicial Fairness Initiative tasked with providing monetary support for judge candidates with conservative ideology.

Specifically, the Judicial Fairness Initiative plans to help mobilize voters, fund campaigns, and gather resources to help in judicial elections. While Matt Walter, president of RSLC, has not announced a set budget for the program, the group is estimated to spend more than $5 million on judicial campaigns this year alone.

Most recently, the RSLC had gained national attention with its involvement in the North Carolina Supreme Court race. The group contributed over $600,000 to the conservative Justice for All NC PAC. Justice for All NC then went on to release a series of ads against incumbent Justice Robin Hudson suggesting her of siding with ‘child predators’ after her dissenting opinion in a case over electronic monitoring of child molesters.

However, Republicans are not the only ones throwing money behind judicial candidates. Groups and individuals from across the political spectrum, including left-leaning Human Rights Watch, are providing financial support for their favored judicial candidates. Since very few states have laws requiring judges to recuse themselves in cases involving parties that contributed to their election, it presents a public perception of impartiality when judges preside over such cases.

Current judicial elections risk turning the judiciary into another partisan political battleground. When partisan political groups support judges, either financially or through endorsements, the perception of a fair and impartial judiciary is tainted. Judges then risk being seen as ruling in line with their political supporters rather than through the objective interpretation of the law. As Alicia Bannon, of the Brennan Center for Justice at NYU law school accurately states, the politicization of judicial elections risks turning judges into ‘politicians with robes.’ With a judiciary that depends heavily on public trust, judges cannot risk the perception of impropriety.

The most appropriate way to curb the influence of politics from the judiciary is through merit selection. Merit selection depoliticizes judges by removing the pressure on judges to act in accordance to a political ideology in return for campaign donations and support. Instead, merit selection relies on the nomination of qualified judge candidates by a bipartisan citizen committee for gubernatorial approval and Senate confirmation. This process ensures the selection of judges based on their earned credentials, not their political allegiance.

Pennsylvania can avoid the partisan influence of the RSLC and other groups by supporting efforts to move from contested elections of judges to the merit selection of judges. We all deserve a court system we have confidence in to act in accordance with the law, rather than with politics. Let the politicians keep their suits; we prefer our judges in robes.

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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 26 2014

Arkansas’s Judicial Business

Arkansas Circuit Judge Mike Maggio recently stepped out of the 2014 race for a seat on the Arkansas Court of Appeals, after it was revealed that he was behind an online pseudonym linked to racist, homophobic, and sexist comments. However, despite the moral turpitude Judge Maggio demonstrated in committing these acts, it is what he did while still in the judicial race that lands him prime real estate on our blog today.

 

When Judge Maggio was running for reelection, he received at least $10,000 in contributions that were linked to a corporate chain of nursing homes owned by Michael Morton. Just a few days later, Judge Maggio issued a ruling that lowered a damages award against Morton’s company from $5.2 million to $1 million. No wonder the public thinks justice is for sale.

 

Even if the legal reasoning was sound, there were no errors, and Judge Maggio’s actions were otherwise beyond reproach, his ruling came literally days after receiving the campaign contribution. Regardless of the reality, it certainly “appears” as if Morton was able to spend $10,000 in return for a ruling that saved him over $4 million. Often, this appearance of impropriety is nearly as damaging to the public’s confidence in the courts as actual impropriety. Judicial

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decision-making should not appear to be a business transaction.

 

Here in Pennsylvania, we too select our judges through expensive, partisan judicial elections. So the same scenario that just occurred in Arkansas could easily arise in Pennsylvania. But why should we let it come to that? If we got rid of judicial elections and selected our judges based on merit, we wouldn’t have to worry about the spectre of campaign contributions influencing judicial decisions. Elections including those for judicial office, are won and lost based solely on the financial wherewithal of the campaign. Merit selection takes money out of the equation and replaces it with an in-depth review of the qualifications and experience of the prospective judge.

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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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Mar 10 2014

Cash Still King in Texas Judicial Elections

What’s the most important qualification a person needs to become a judge? Perhaps a sense of fairness, integrity, or knowledge of the law? Each of these qualifications are certainly important to becoming a judge, however, if former Texas Judge Steven Kirkland’s story is any indication, in Texas the most important qualification is money.

 

Texas is one of only 6 states (including Pennsylvania) that elects all judges in partisan elections. So when then judge Kirkland ruled against Houston based attorney George Fleming, in a 2011 case, Fleming took advantage of the judicial election system by seeking out and bank rolling a challenger to run against Kirkland in the democratic primary. Fleming’s investment paid off and Kirkland lost.

 

Money: 1 Judicial Qualifications: 0

 

Kirkland is currently running for judge in the 113th district in Texas, rather than his old seat in the 215th. Yet once again, Mr Fleming is having none of it. Still incensed about Kirkland’s decision against him, Fleming is currently bank rolling Kirkland’s primary opponent for judgeship in the 113th district of Texas.

 

The results of this current race remain to be seen, however, that’s hardly the point. Instead what we can learn from Kirkland’s experience, is how judicial elections allow money to skew what it takes to become a judge. Judges should be selected based on qualifications, integrity, and judicial temperament, not campaign acumen or fundraising prowess.

 

Kirkland may have been the fairest judge, the smartest judge, and demonstrated the most integrity amongst his colleagues. However, because he had the temerity to rule against Fleming, his career was derailed by a mountain of cash and Texans were deprived of a qualified judge.

 

Although nothing so extreme has happened in Pennsylvania, the expensive partisan judicial election system is ripe for abuse. Here too we can only hope that the judges who manage to raise the most money to get elected, also happen to be the most qualified to serve on the bench.

 

Or we could select them based on merit.

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Feb 27 2014

Justice for Sale

Published by under Merit Selection

The Wisconsin Supreme Court is currently hearing arguments regarding a probe into whether or not Republican candidates “coordinated” with special interest group donors during the 2011 and 2012 recall elections.

Two of the groups being investigated,  Wisconsin Club for Growth and Citizens for a Strong America, are large donors to several of the Justice’s campaigns. In 2011 Justice Prosser received over $1 million in campaign donations from the two groups, dwarfing his own $700,000 personal contribution. The two organizations also helped elect four other Justices to the Supreme Court. Under Wisconsin law, the Justices are not mandated to recuse themselves from cases involving their own donors. Additionally, the secretive nature of the John Doe case means that we may not immediately know how the judges rule in the case.

So, what’s the big deal? What is happening in Wisconsin is just another example of money corrupting the judicial selection process. Currently judicial elections depend upon financial contribution from donors, including lawyers, law firms and interests that have business before the court, to have any chance at being elected. This is not to say that judges rule in line with the wishes of their donors, but there is a problem of appearances at hand. When the public sees a judge presiding over a case involving a campaign donor, questions arise over the objectivity of the judges’ decisions. The reputation of fairness and impartiality is paramount to the success of the judicial system. Cases like the one in Wisconsin further reduce the public’s trust in the judicial system and ultimately undermine the Judiciary’s reputation.

Merit selection eliminates most of the money in the judicial election process. Through merit selection, judges are selected based on their credentials, not the size of their war chest. When a case is brought before a judge, the law and the facts of the case should determine the outcome, not how much one party donated to the judge’s campaign. Pennsylvania lawmakers should move forward on the proposals before them to implement merit selection for statewide judges. When justice is for sale, no one wins.

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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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Feb 25 2014

Playing Games with Justice

There is something peculiar happening in the LoneStar State this judicial campaign season. An impending Republican primary for Texas Supreme Court, has made strange bedfellows of Democratic trial attorneys, and Republican challengers, with the former raising money for the latter.

 

According to the Houston Chronicle, a coalition of Texans led by Democratic trial attorneys John Eddie Williams and Lisa Blue Baron, recently held a fundraiser for the political action committee Balance PAC, which supports three Republican challengers in primary races against incumbent Texas Supreme Court Justices. Political observers believe that the bipartisan fundraiser is an effort by Democrats to unseat incumbent Republican judges through primary challenges. This is just another symptom of Texas’s highly contentious judicial selection model.

 

Texas’s system of partisan judicial elections has, for years been fueled by special interest money from both sides of the aisle. Efforts to reform this system have

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equally been dogged by both political parties, making money a major issue in Texas’s judicial selection scheme.

 

Several attendees of the fundraiser were critical of Texas’s judicial selection scheme, including Republican plaintiff’s lawyer Mark Lanier. In a quote that seems the capture the dilemma that lawyers face in Texas under this system, Lanier stated “I think the partisan election of judges is the worst possible way to choose judges. I am not a fan, but I’ve got a responsibility to play in the system.” Balance PAC spokesman Eric Axel further noted that “This is a broad coalition of Texans who believe the court has been taken over by multinational corporations,” referring to the perception that corporations generally win on appeal in Texas, because they have the Supreme Court in their pockets.

 

Unfortunately, Pennsylvania also has partisan judicial elections. Unlike Texas, where the parties are working together to game the system, however, in Pennsylvania, the parties are working together to reform it. Last fall, Democratic Representative Brian Sims, joined Republican Representative Bryan Cutler, to introduce judicial merit selection legislation. This legislation would eliminate the perception that judges are influenced by campaign contributions and demonstrate Pennsylvania’s leadership in judicial reform. It’s time for Pennsylvania to move forward on merit selection for appellate judges.

 

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