Jul 08 2011

Public Distrust in Judiciary a Cause for Concern

The recent events in Wisconsin have everyone talking, and no one should like what the public has to say: it has lost respect for and trust in the judiciary. Public faith in the courts is the very basis of our justice system. When allegations of physical altercations arise and enormous amounts of judicial campaign spending create cause for concern, courts need to defend their independence, impartiality, and integrity.

Wisconsin state senators, Tim Cullen (D) and Dale Schultz (R), have offered merit selection as the means by which the judiciary can regain public confidence. The senators said in an interview with Steve Walters that they understand how the public might not trust its courts. Sen. Cullen said, “I no longer trust the court on the merits of the law. I know that sounds pretty inflammatory, but if I was appearing in a case before the Supreme Court and my opponent had spent a tremendous amount of money on one of the justices, I wouldn’t feel comfortable with that court.” Sen. Schultz similarly blames in the influx of campaign contributions for public distrust in the courts: “With all the money in the races it encourages justices to be activists on both sides. This puts into play whether the decision is based on who gave what or spent money on their behalf. Can we survive in this country when people know that incentive is there? ”

Others fault hostility among the justices for the distrust of the courts. “Given the nature of the issues faced by the Supreme Court, intellectual conflict is understandable; hand-to-hand combat is not acceptable and demeans the court.” The editorial suggests that a unanimous apology from the court would be an important first step, but also says, “We fear that the court has reached a level of dysfunction beyond repair.”

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The concern is well placed. When people go to court and wonder if campaign contributions influence their judge’s decisions, how can they trust the judiciary? When political hostilities come to blows, how can the public believe in the integrity of the judiciary? A restoration of public confidence in the courts is sorely needed. Merit selection can refocus the conversation around the ability of judges to impartially apply the law and renew public faith that a decision will be a fair one.

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Jun 22 2011

Recent blog article questions significance of study on Florida Supreme Court

Published by under Merit Selection

Judicial retention elections are a vital part of both Pennsylvania’s current system and merit selection, the system favored by Judges on Merit. Through them, the people make their voice heard. However, it’s important to remember that though we have the power to remove judges, we ought to wield it wisely, evaluating our judges based on their legal philosophy as a whole, rather than on a handful of politically contentious decisions. Gavel Grab’s recent piece focuses on efforts to remove several Justices from Florida’s Supreme Court and draws our attention to a study trumpeted by Tea Party groups, who advocate for the Justices’ dismissal. Though published in 2005, the study has recently gained traction as these groups look to justify their efforts to remove several members of the Court. This study, indirectly funded by the National Association of Manufacturers through the American Justice Partnership, focuses on a handful of decisions (eleven over the past thirty years) to unfairly label Florida’s Supreme Court as ‘Activist.’

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It is important to remember that we ask judges to make decisions not on what is politically popular but according to the law. Much of the anger aimed at Florida’s Court comes from a recent ruling that barred a state referendum on federal health care legislation. However, it is a mistake to remove judges due to occasional unpopular decisions. The best judicial philosophies demand that judges make unpopular decisions if what is popular is contrary to the law or the facts. It is vital we evaluate judges based on their record as a whole, rather than focusing on a handful of decisions. Moreover, the involvement of NAM is troubling. Whenever any one group begins to play an outsized role in judicial elections, it creates the danger of bias when that party, or those it represents, comes before the bench. Judges must be held accountable, it is true, but they must also be allowed to impartially apply justice, even if we disagree with the result. Our vote “should be cast based on honest research, not on partisan gamesmanship,” as Gavel Grab writer Charlie Hall points out, and we urge Floridians to cast their judicial votes accordingly.

 

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Feb 03 2011

Judicial Elections Threaten Judicial Independence

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.

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Dec 15 2010

Michigan Task Force on Court Reform

Published by under Judges,Merit Selection

Dawson Bell at the Detroit Free Press announced that a year-long task force will be launched to examine failings with Michigan’s judicial selection process and make recommendations for reform. The 24-member task force will be comprised of veteran judges, lawyers, and judicial activists, and it will be led by Michigan Supreme Court Chief Justice Marilyn Kelly and United States 6th Circuit Court of Appeals Judge James Ryan. In addition, former United States Supreme Court Justice Sandra Day O’Connor will serve as the honorary chairwoman.

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According to Kelly, the task force will examine: “any potential threat to judicial independence posed by the influence of politics and money in judicial elections.” She believes that: “the nasty tenor and intensity of high priced judicial campaigns, such as the recently concluded Supreme Court race, undermine public confidence in the court.”

We agree that judicial elections undermine public confidence in the courts, and that reform is necessary. Merit selection removes money and much of the influence of politics from judicial selection, and is the best way to ensure fair and impartial courts.

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Dec 09 2010

The Importance of Judicial Independence

Over at What About Clients?, JD Hull is again questioning the practice of electing judges. Stating that electing state judges is “beneath all Americans,” Hull looks to Alexis de Tocqueville to provide an opinion from history that elected judges threaten judicial independence. In 1831, Tocqueville described his concerns about electing members of the judiciary:

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Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.

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We agree with Hull and Tocqueville that electing judges detracts from an independent judiciary, and believe that there is a better alternative. Merit Selection is the best way to ensure the fair and impartial courts that Americans should insist on.

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Dec 08 2010

The Role of Judges

Published by under Judges,Opinion

An editorial in the Des Moines Register criticizes governor-elect Terry Branstad for suggesting that new justices on the Iowa Supreme Court should follow the will of voters who recently ousted three justices.

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Looking at Branstad’s comments on the court’s gay marriage decision and the future of the court, the editorial describes potential problems with his views. The editorial is primarily concerned that this is mischaracterizing the role of judges, and that this is a call for judges to subvert the civil rights of the minority to the will of the majority. It goes on to state that the Iowa Constitution’s Bill of Rights was: “created to protect minority rights from the tyranny of the majority.”

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We agree that judges play a special role in our government system, and their job is not always to rule in favor of public opinion. The judicial branch is separate from the other branches of government, and should act independently of the public, the executive, and the legislature. Instead, courts should be guided by the law. In terms of judicial selection, this means that for retention elections to provide a meaningful evaluation of judicial performance, the public must be educated about the unique function of judges. Only with education and understanding can the public best play their role in guaranteeing fair and impartial courts.

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Nov 10 2010

When Justice is a Business

Published by under Judges,Merit Selection

In an article appearing on Law.com, Katherine A. Helm takes an interesting approach to examining state judicial selection processes by doing so in the context of the United States Supreme Court and a new John Grisham novel.

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Helm looks at U.S. Supreme Court decisions that have divided along the party lines of those who appointed the justices and describes the behind the scenes rigging of judicial elections in Grisham’s novel. This leads her to ask whether the novel’s tagline, “Politics has always been a dirty game. Now justice is, too” applies to the actual judicial system.

In expressing worry over state judiciaries Helm does not stop at Grisham’s criticisms but notes retired U.S. Supreme Court Justice Sandra Day O’Connor’s stance against an elected judiciary, as well as the concerns of several sitting justices in regard to contributions to judicial campaigns. Helm announces: “If the highest ranks of the judiciary are concerned that money in elections threatens the very institution and the fair administration of justice, people should listen.”

Helm goes on to discuss the dangers of allowing money from corporations and special interest groups to affect judicial elections, in addition to the risk when judges try to make popular decisions instead of legally correct ones. “If judges start to treat their profession as a business and hesitate to rule against their electorate for fear of losing their jobs, the administration of justice is compromised.” Helm follows her concerns with a call for a change to a system involving appointment. She concludes that there is an inherent difference between politics influencing a judicial appointment and “fat cats or lobbyists bankrolling “their guys” and their campaigns to get them on the bench to serve their economic interests and loaded social agendas. This is intolerable and a judicial form of pay-for-play at its worst.”

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 We agree that judicial elections threaten judicial independence, and that it is time to change the system. A merit selection plan that includes a bi-partisan nominating commission addresses the concerns about politics in judicial appointments and fundraising involved in judicial elections. Merit selection represents the best option for ensuring fair and impartial courts.

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Oct 22 2010

“The Farcical Exercise” – Judicial Elections Around the Country

Published by under Judges,Merit Selection

Over at Gavel Grab, Peter Hardin takes a look at various judicial elections and ballot initiatives happening around the country. In doing so, Hardin provides examples of the weaknesses inherent in judicial elections.

In Georgia, the Secretary of State is looking at the possibility that a candidate for the state supreme court may have violated election law. A Huffington Post commentary denounces the amount of money involved in the campaign for seats on the Ohio Supreme Court, referring to the money as “scandalous ‘justice for sale’ financing.” Pointing to the lack of attention typically given to judicial elections, the commentary attempts to bring to light the: “wave of campaign cash and independent expenditures by businesses and organizations whose interests are tied up in cases before the Ohio Supreme Court.”

In Nevada, the struggle continues over the ballot initiative to switch from judicial elections to merit selection. Meanwhile, an editorial in the Detroit Free Press asks Michigan voters to approve a constitutional convention to dispose of judicial elections. Referring to “the farcical exercise known as judicial elections,” the editorial explains that the election system is “dysfunctional” and dominated by campaign contributions from interested parties. The editorial argues that, the system:

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tends to work poorly for ordinary citizens. Michigan’s ostensibly independent judiciary is increasingly larded with apparatchiks who owe their initial appointments to partisan loyalty and are virtually immune from accountability thereafter.

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Judges are different from other government offices, and the process to select them should reflect these differences. The use of ugly or illegal campaign tactics, the perception that justice is for sale, and the involvement of special interest money are all reasons that judicial elections do not work to create fair and impartial courts. Merit selection addresses these concerns and provides a way to select an independent judiciary.

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Oct 19 2010

Special Interests “Chip Away” at Impartial Courts

An editorial in USA Today focuses on the threat special interest groups pose to judicial independence and asserts that these groups have “chipped away at impartial justice.” It looks at the increase in campaign expenditures during the past decade in comparison with expenditures in the 1990s and sees special interest groups: “ensuring they’ll win in court by spending big money to elect judges who agree with them and to oust those who don’t.” The editorial goes on to express concern over the content of judicial campaigns, as well as the role judges play in fundraising:

State Supreme Court races have often degenerated into nasty battles with corporate interests on one side and trial lawyers on the other.… Scurrilous attacks and nasty ad campaigns are now routine in judicial races. Judges themselves raise money from lawyers, doctors, union chiefs and business executives who then appear in their courts, an obvious conflict of interest.

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We agree that judges do not belong in the fundraising business and special interest groups should not be allowed to exert influence over the courts. Merit selection is the best way to put an end to ugly judicial campaigns and ensure fair and impartial courts.

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Oct 18 2010

Money Threatens Judicial Independence

Roderick M. Hills at the Huffington Post believes that there is a threat to the independence of state judiciaries and that merit selection offers the best solution. His post discusses some of the dangers created by the increasing amounts of money involved in judicial elections, noting that judicial independence is threatened when judges become fundraisers. Hills admonishes those who: “foolishly ignore the increasing number of politically charged judicial contests that are characterized by large campaign expenditures from groups or individuals who seek to influence judicial opinions.”

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Hills is concerned with about how contested judicial elections affect the business climate and the willingness of businesses to operate in a particular state. He urges: “Business is best when it operates in the market place and not the political arena.” He notes that the money problem creates difficulties for big businesses whose courtroom opponents may be able to bring suit in a state where they are regular contributors to the judge presiding over the case.

If big business is concerned about facing bias in the courts, what about the threat to small business owners and independent litigants with fewer resources? Courts should be fair and impartial, and litigants should not have to worry about where judges get their campaign funds. Merit selection takes judges out of the fundraising business and ensures an impartial judiciary.

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