judgesonmerit.org

Recently, we reported that a debate was held in Minnesota about whether to change the way judges are selected.  Now, we’re reading that similar debates are being held and questions raised about judicial selection in Tennessee, Virginia, and Wisconsin.  While each of these states is different and has its own unique experiences in the judicial selection arena, the critical point is that the issue is being publicly discussed.  These discussions are important steps in the lengthy process of changing how judges are selected.  It is essential that the public be engaged and have the opportunity to debate and discuss the issue.

We know Pennsylvanians have strong views about how judges should be selected, and we also know that Pennsylvanians want the opportunity to decide if there is a better way to select judges than the current electoral process. Merit Selection bills are pending in both houses of the legislature, and it anticipated that the House Judiciary Committee will reschedule the public hearing that was initially scheduled for November.

We hope that Pennsylvania will soon be talking about judicial selection as well.  It is time.

If a recent hearing is any indication, the Nevada Supreme Court is about to allow the state’s judges and judicial candidates to “take the gloves off” when campaigning for a seat on the bench. According to the Las Vegas Review-Journal, “[j]ustices seemed to favor lifting the restrictions, which prohibit judicial candidates both in what they can say in a campaign and how and when they raise money.” The comments came at a public hearing held Thursday, that could determine the future of the court’s Standing Commission on Judicial Ethics and Election Practices.

Recent rulings by the U.S. Supreme Court have raised the issue of whether Nevada’s restrictions on judicial campaigning and fundraising infringe on First Amendment free-speech protections. The Nevada Supreme Court is deciding whether or not to overhaul the commission, which uses those rules to resole campaign disputes, and advise sitting judges who inquire about ethical issues.

The voters in Nevada recently rejected a proposal to eliminate judicial elections in favor of a Merit Selection system. Now, they’ll likely be faced with increasingly partisan judicial campaign rhetoric, and judges whose political savvy and fundraising skills are their most important qualifications for the bench. We hope that we can provide the voters of Pennsylvania with the opportunity to make a different choice.

Over at MinnPost.com, Eric Black offers a review of a forum held yesterday on whether to change Minnesota’s judicial selection system from elections to Merit Selection.  Black notes that the forum got a little heated as the participants offered their views:

That was the topic of a lively panel at the Humphrey Institute in which the panelists came about as close to calling each other names as you ever hear at a Humphrey panel, and the audience got as close to rowdy as I’ve ever seen at a Humphrey panel.

We know people have strong views about judicial selection, but it’s usually best to keep things civilized and let everyone have their say.  In our mind, former Chief Justice Eric Magnuson made a strong case for moving to Merit Selection, focusing on the way judicial elections undermine public confidence in the impartiality of the judiciary.  Black summarizes Magnuson’s arguments:

When you go in front of a judge, you’d like to feel that the playing field is level.

Turning judicial campaigns into partisan dogfights will create the opposite situation.  Judicial candidates won’t be dumb enough to make campaign promises to rule particular ways on issues that might come before them in the courtroom. . . but they are gonna use buzz words and catch phrases and they’re gonna appear before particular groups in order to raise money. That’s what competitive elections are all about. Campaign spending in judicial elections is rising fast. . . inevitably creating the impression that the winning candidate will be influenced by the interests of their contributors.

Do you want that element, that bad smell, injected into your choice of judge. . . .The question won’t be whether you’re going to appear in front of a good judge or a bad judge. The question increasingly will be whose judge are you going to appear in front of?

We agree that judicial elections leave a bad taste and creative negative public perceptions about the courts.  There is no perfect system, but Merit Selection gets judges out of the fundraising business.  That sounds good to us.

Pete DeCoursey, bureau chief at the influential news source Capitolwire, has come to the realization that electing judges just doesn’t make sense. After covering judicial elections for over a decade, this election, with all its negative ads and astronomical costs finally tipped the scales (no pun intended).

In a groundbreaking article last Thursday, DeCoursey asked “Where is the public value in Supreme Court elections?” We highlighted some very compelling arguments from that piece here.

On Monday morning, DeCoursey joined Bonita Hoke, executive director of the League of Women Voters of PA on Harrisburg’s WITF Smart Talk. When asked what made him change his mind, DeCoursey responded that because judges are restricted from discussing issues in depth (legally or tactically, whichever), the idea of voters being able to make informed decisions seems to be a fiction.

Heading further west, J. Daniel Hull, a prominent blogger and a partner at the Pittsburgh law firm Hull McGuire was quoted in the Wall Street Journal Law Blog about his call for voters in states with judicial elections to stay home. Why would he make such a plea?

Hull explained that judges are different than other government officials, and argued they should not be elected:

The popular election of state judges . . . gives the appearance of justice being ‘for sale’ . . . . State systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.”

The point: Judges should not have ‘constituents,’ i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to” dress that up.

Hull’s frustration is palpable:

American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect–and also poses risks–but it is far better than what most American states currently have in place. It’s time for American states to grow up.”

We agree that it is very difficult – if not impossible – to design a perfect judicial selection system.  And we know that it is not possible to take politics entirely out of the process of picking those who will serve on the bench. But it is possible to take money out of the judicial selection process and make qualifications the determining factor for who reaches the bench. This is what Merit Selection can accomplish.

Last week, we wrote about a case currently before a state court panel in Wisconsin involving Michael Gableman, a then-candidate for the state’s Supreme Court who ran an ad against his incumbent opponent. The ad was quite misleading (at best).

According to the National Law Journal, that case may be ultimately headed for the U.S. Supreme Court. In 2007, Washington State’s Supreme Court struck down a state law that prohibited false political ads about opponents as violating the First Amendment protection free speech.  If the Wisconsin Supremes now rule against Gableman’s advertisement, a conflict between the states on an interpretation of the federal constitution will give rise to a basis for Supreme Court review.

Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar’s judicial integrity campaign committee also was “highly critical” of the ad.

“I think the law is eventually going to say that, when you have a judicial election, it’s just the same as any partisan election,” Basting said.

Whichever way Wisconsin rules, the very fact that judicial candidates are mixed up in these types of questions – how low can you go when running for office and stay within your First Amendment rights – highlights the inherent flaw with judicial elections.  Bastings continued in the NLJ article:

“That’s why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges.”

What will it take to convince Pennsylvanians to take a similar hard look?

The Charleston Daily Mail reports that the Independent Commission on Judicial Reform appointed by Governor Joe Manchin will be focusing on “judicial selection, campaign finance rules, and the right to appeal.”  Since these have been major issues in West Virginia recently, this seems to us like a good place to start.  We hope that Pennsylvania will also have an opportunity to focus public dialogue, study and debate on judicial selection.  Such discussion is the first step toward allowing the people to decide for themselves the best way to select judges.

PMC’s letter to the editor in response to the Philadelphia Inquirer’s editorial on Caperton v. Massey identifies Merit Selection as the way to get judges out of the fundraising business.  In the letter, PMC argues that rules requiring recusal in cases involving campaign contributions are a good first step, but more is needed to address the poisonous role of money in judicial selection:

It’s time to get judges out of the fund-raising business altogether. Today, when most of those surveyed are worried about the impact of contributions on how judges rule, we need a system that takes money far away from the scales of justice. When you go to court, you want a judge who considers the facts and the law; you shouldn’t be worrying about whether your lawyer or the opposing side gave a campaign contribution. Replacing elections for appellate court judges with merit selection is the way to eliminate this concern.

According to an Associated Press report, judicial selection reform is on a lot of people’s minds.  “More than a half dozen states have either put questions relating to judicial selection to voters this year, or have legislatures planning to discuss the topic in 2009.”  This shows that people care about this issue and realize how important it is to ensure that we are using the best system to select our judges.

This isn’t a question that states answer once and for all, as the striking diversity of selection methods across the nation demonstrates.  The people should have the opportunity to reexamine the judicial selection system to make sure it is working to select the most qualified, fair and independent judges.

We want Pennsylvanians to have the opportunity to voice their opinions about how we choose our appellate judges.  A lot has changed since the people last had this opportunity forty years ago.  We believe it’s time to ask the people again — should we continue to elect our judges in expensive, partisan contests or should we use a different system that emphasizes qualifications, skill, experience and temperament?

It’s time to let the people decide.