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An editorial in the Pittsburgh Post-Gazette decries the growing problem of money in judicial elections that was reported in The New Politics of Judicial Elections 2009-2010:

Lady Justice is often depicted blindfolded to signify that outside influence does not tip the scales she holds to weigh the truth. Unfortunately, the scales are being tipped by special interests that pour money into judicial elections to get a desired result.

Too often it is the voters themselves who are blind to what is going on, yet this is a national problem and Pennsylvania is affected worse than most.

The editorial discusses the money raised in the 2009 Pennsylvania Supreme Court race between Justice Joan Orie Melvin and Judge Jack Panella, and notes that plaintiffs’ trial lawyers and the state Republican party provided much of the money that funded those campaigns.

The editorial then urges that the solution to the money problem is Merit Selection: “In a merit selection system of the sort proposed but not adopted in Pennsylvania, the corrupting influence of money would not be an issue.”  That’s true, because Merit Selection gets judges out of the fundraising business and stops the flow of money to judicial candidates from people and organizations that later appear before the judges they helped elect.

Merit Selection legislation is pending in the House and Senate.  Passage would set the stage for Pennsylvanians to have the opportunity to decide whether we should find a better way to select appellate court judges.  Without reform, we are left with the alternative described in the closing words of the editorial: a Pennsylvania where “politicians and public alike wear self-imposed blindfolds and pretend only to hear banging gavels, not cash hitting the scales of justice.”

That’s the title of an editorial in the Connecticut Law Tribune.  The editorial discusses the problems inherent in judicial elections, including “the twin evils” of campaign cash and retribution for unpopular opinions. It then moves on to discuss the recent Wisconsin elections, highly politicized, expensive and divisive.  The editorial notes that the role of judges is different, and that the way we choose them should reflect that:

The ultimate power of the judiciary comes from the respect the public has when it feels that the judiciary’s decisions are those of an independent, unbiased institution and that such an institution is more suited than the public itself to decide questions of law and fact. A judicial election that becomes a proxy for resolution of a political dispute is no way to instill public confidence in the independence and objectivity of the judiciary.

This makes sense to us.

The editorial expresses pride and relief that Connecticut does not use judicial elections.  It seems a lesson worthy of study for Pennsylvania.

This is the question our friends at What About Clients ask today.  In a nutshell, JD Hull explains that judicial elections:

send bad-smelling messages to all clients, all Americans, and the entire world about the nature of justice in America: (1) Judges have “constituents”; and (2) Justice here is “for sale”.

Well, put.  Thanks for breaking this issue down to the key point:  judicial elections are bad for all of us.

A Philadelphia Inquirer editorial criticizing the recent “request” by the Philadelphia Democratic Party for $10,000 contributions from judges standing for retention this year, strongly condemns the electoral system.  “By approaching sitting judges for campaign contributions, party officials are engaging in what the state’s longtime court-reform group, Pennsylvanians for Modern Courts, calls “a prime example of how money and politics pollute the process of electing judges.”  The editorial specifically attacks the way the electoral system essentially requires fundraising from those most likely to appear in court, noting that it creates “at the least, an impression among the public that justice is for sale.”

The editorial closes with the hope that instances like this will further spur the move for reform: “the whole breakfast episode should at least help motivate some state lawmakers – their efforts supported by Gov. Corbett – who are pushing for the merit-based appointment of appellate-court judges as a first step in breaking the link between judges and campaign cash.”  We hope this prediction proves accurate and that Pennsylvanians will soon have the opportunity to decide whether they want to change the way we select appellate court judges.

In a letter published in the Philadelphia Inquirer, PMC and Justice At Stake argue that when political parties demand “contributions” from sitting judges for support in retention elections, the whole purpose of retention elections has been undermined.  The letter responds to a report that the Philadelphia Democratic Party has requested $10,000 “contributions” from judges standing for retention in exchange for support on election day.

PMC and Justice At Stake explain that retention elections are yes/no, uncontested and nonpartisan and serve to let the public determine whether a judge should remain on the bench.  PMC and Justice at Stake urge that we are all responsible for returning retention elections to their original purpose: “Lawyers, bar associations, civic groups, and those who care about good government and fair courts — including the media — must ensure that retention elections are what they were intended to be: a referendum on the judge’s performance on the bench, not another political contest.”

The letter closes with this strong statement about why we need reform:  “The [Democratic] party’s greedy ‘request’ is a reminder that judges shouldn’t be elected in the first place.  Judges and money should not mix. Politics should stay out of the courtroom.”

An article in Reuters examines an effort occupying several states: the quest to find a better way to select judges.

The article profiles the ongoing debate in Tennessee over whether to continue its Merit Selection system.  Defenders of the current system, including the legal and business communities, argue that ” judicial elections would lead to expensive campaigns — that they’d be asked to bankroll — and biased judges.”  By contrast, those pressing to change the system are eager to get more conservative Republicans on the bench.

The article also looks to Pennsylvania, recognizing the recent introduction of Merit Selection legislation designed as “an an effort to rein in the role of money and fundraising in judicial elections.”  We hope this effort will be successful and will lead to the opportunity for Pennsylvanians to decide how they want to choose appellate court judges.  (Remember, amending the Constitution to implement Merit Selection requires identical legislation to pass in two successive sessions and then a positive public referendum.)

We know there will be discussion and debate. We just think it’s time to be talking about this critical issue.

A Lancaster Online editorial predicts that the new proposal for Merit Selection of statewide appellate court judges in Pennsylvania may see some political success this time around. “Many people are growing ever more concerned about the increasingly expensive and partisan elections. Also, the Luzerne County ‘kids for cash’ scandal cast a long shadow over the Pennsylvania judiciary.” The article cites the 2010 Public Opinion Strategies poll that found that 75% of people feared that campaign contributions might influence judicial decisions and 93% wanted the opportunity to vote on whether we change our system for selecting appellate judges in Pennsylvania.

As the author states, the proposal repeats what many fair courts proponents have been saying for years. And as State Representative Bryan Cutler (R-Lancaster), the bill’s primary sponsor, said, “Merit selection has a strong history in our nation and works well in many other jurisdictions. It produces exceptionally qualified candidates who represent the diverse nature of our society.”

The editorial speaks out for a better selection of statewide judges. “[F]ew can argue that voters cast an informed vote when it comes to selecting appellate court judges. This is due, in large part, because candidates are limited by judicial ethics in what they can say during political campaigns. This often reduces the campaigns to generalities, niceties and sound bites.”

We agree that the public deserves better and hope the public will have an opportunity to vote on the best way to choose qualified, fair, and impartial members of the judiciary.

The Rome News-Tribune reports that two members of the Georgia Court of Appeals, Judges Stephen Louis A. Dillard and Judge Keith R. Blackwell, will be running for election in 2012. Both judges were appointed by former Governor Sonny Perdue last November. However, the judges clarify that the political party of their appointing governor does not define them as judges. Dillard says, ““The reality is we’re not Republican judges. We’re not Democratic judges. We’re just judges.” Blackwell agrees that partisan affiliations should not, and do not, affect how a judge decides a case. “I can tell you uniformly on our court I am confident that there is not one of the 12 judges who would look at a case and ask how would the Democrats like this case to come out or how would the Republicans like this case to come out in deciding the case,” says Blackwell.

Unlike Pennsylvania, which selects all judges through partisan elections, Georgia selects its judges through nonpartisan elections. While taking the party label off the judicial ballot might help, candidates may still be labeled as “Republican” or “Democrat” by the public, because the public is accustomed to an election system based on party politics. Elections are simply not the appropriate vehicle for judicial selection if we want judges chosen based on ability and not on other factors that have no bearing on how a judge will do his/her job, factors like party affiliation, county of residence, and ballot position. As Dillard says, “Ultimately as a judge your job is a very simple one, it’s not always easy, but it’s to interpret the law. That’s your role.”

In a recent Montgomery Advertiser editorial, Retired U.S. Magistrate Judge Vanzetta Penn McPherson advocates a transition from judicial elections to Merit Selection of judges. Her critique of judicial elections follows the resignation of Alabama Chief Justice Sue Bell Cobb. McPherson seconds Cobb’s concern that partisan elections of judges “perpetuate the public perception that judges are selected more on campaign contributions than on ability.”

McPherson distinguishes the role of judges from governors and legislators. “The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.” In direct contrast, judges should rule objectively, without concern for party politics or personal ideologies, says McPherson. “It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.”

McPherson faults judicial elections beyond the involvement of money and politics. Rather, she identifies the crux of the problem to be the lack of emphasis on judicial qualifications. McPherson describes the intellectual challenges of serving on the bench and the need for judges with significant experience, strong academic achievement, effective management skills, and reasonable temperance. According to McPherson, Alabama’s codified qualifications fail to measure up. And before 2009, she says judicial campaigns were “more likely to highlight a candidate’s religious faith, church attendance and political ideology than the candidate’s abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.”

McPherson believes Merit Selection is “in the public’s best interest,” because it prioritizes a judge’s qualifications and temperament. We support her fight to change Alabama’s system of judicial selection and urge Pennsylvania to heed her call.