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A new poll released by Justice At Stake confirms that the belief that campaign contributions influence judicial decision-making is shared by Republicans and Democrats.  Among the key findings of the poll:

71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. All told, 71 percent of voters share this assessment; only 23 percent believe campaign expenditures have little or no influence on elected judges.

Justice At Stake explains in its press release:

The American mainstream wants courts to be off-limits to special-interest money and partisan politics. . . . The new polling shows that the desire for impartial courts is broad and bipartisan.

We have written before about the growing public perception that justice is for sale.  This perception is powerful and problematic, even if it might be erroneous.  That is, even if no judge ever were influenced by a campaign contribution, the belief that he or she could be persists.  It is not possible to disprove the belief.  This in itself weakens our courts, because our courts can only function when they have the trust and confidence of the people.

The only way to overcome the perception is to break its foundations — and the only way to break the perceived link between money and justice is to get money out of the system.  This can best be achieved by getting judges out of the fundraising business by using a selection system that does not require money at all: Merit Selection.

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

Today, PMC partners Justice At Stake, the Brennan Center for Justice and the National Institute on Money in State Politics issued a new report analyzing the last decade of judicial elections entitled “The New
Politics of Judicial Elections: 2000-2009.” Pennsylvania is prominently featured in the Report, which examines the explosion in fundraising and spending in these elections as well as the increasing participation of special
interests.

The Report notes that Pennsylvania ranks second in the nation for election spending during the decade.  In addition, Pennsylvania was home to the most expensive Supreme Court election in the nation during the 2007-08
cycle.  In that year, there were two vacancies on the Supreme Court. According to the Report, candidate and third-party spending totaled $10.3 million.  In 2009, as the report notes, the high spending trend continued in Pennsylvania, and we saw the most expensive single seat race in our history.

The Report certainly highlights the increasing importance of cold, hard cash in judicial elections and also reminds us that poll after poll demonstrates that the public — and judges as well — believe that campaign contributions influence judicial decision making.

But there is some cause for optimism.  The Report notes that reform efforts are making progress, and that Merit Selection is gaining ground in states throughout the nation.

The Report presents a cautionary tale — state judicial elections are getting much worse when measured by the factors that affect public confidence: money and special interest participation.  The public wants
fair and impartial courts. Money is widely viewed as a corrupting influence and it undermines the public’s confidence in our courts and judiciary.  There is a clear solution: get money out of the process of
choosing judges. The most effective way to do that is Merit Selection.

Here are the links to the Report:

Full Report

Letter From Justice Sandra Day O’Connor

Executive Summary

State Profiles, 2000-2009

Yesterday, the United States Supreme Court heard oral argument in Citizens United v. FEC. We reported earlier that we joined Justice At Stake and 18 partners in submitting an amici brief in the case, which focuses on restrictions on corporate contributions in elections.  Gavel Grab has extensive coverage of the argument here.

Justice At Stake Executive Director Bert Brandenburg offers an interesting commentary about the case on the blog of the American Constitution Society.  Brandenburg notes:

Just three months ago, the U.S. Supreme Court reached a historic conclusion in Caperton v. Massey. The majority held that the Constitution sets limits on how much special interests can tilt the scales of justice, by requiring judges to step aside in certain case involving their supporters.

Just three months later, Citizens United v. the Federal Election Commission, the campaign finance case argued today, has seemed to float in an alternate universe. . . .

A comparison of the cases is revealing. While Caperton focused on the courts, its gritty facts should strip away any glossy illusions about what will happen if corporate and union treasuries are turned into private campaign war chests.

Brandenburg goes on to compare the arguments made in both cases, noting that former Solicitor General Ted Olson who argued on behalf of Caperton earlier this year at that time opined that “‘The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.’” Yesterday, Olson argued on behalf of Citizens United and opined that “with independent groups, ‘there is less of a threat of corruption because there is no quid pro quo.’”  Brandenburg notes that it is very difficult to square these positions and concludes by posing this chilling hypothetical:

[T]hree Americans in four believe campaign cash affects courtroom decisions. If the federal ban is struck down, similar state laws will be next.

If anyone wonders whether that will have a real-world effect, they should look at Caperton once more and ask this: What if Don Blankenship, the coal executive with litigation in West Virginia, hadn’t been forced to spend from his own pocket? What if he could have just cut a company check to underwrite an election? And what if an unwise ruling makes that the norm, not the exception?

As we wait for a decision in Citizens United, it might be a good time to think about how much worse the situation could become and to ask again why we continue to select judges by a process that requires them to raise campaign funds from individuals and entities likely to appear before them in the future.

We recently reported that PMC joined Justice At Stake and 19 other partners in filing an amicus brief in the Citizens United case.  As we noted, this campaign finance case likely will have important implications for the future of judicial elections.  This issue — particularly the poisonous influence of money in judicial elections — was the focus of our amicus brief.  Gavel Grab offers in-depth coverage of the case, including a three-part series on briefs filed in this case.

Pennsylvanians for Modern Courts (PMC) has joined the Justice at Stake Campaign and 19 other judicial reform groups across the country, in filing an amici curiae (“friends of the court”) brief with the United States Supreme Court in Citizens United v. FEC case on September 9. The case focuses on campaign finance laws regulating corporate spending in elections.

The Citizens United case should be of particular concern to everyone worried that money is polluting the political process.  The Court is being asked to remove restrictions on campaign spending by corporate groups.  Such a decision “could trigger an election spending war in which companies, unions and other groups could tap directly into their treasuries.”

This would remove a major bulwark preventing runaway spending in judicial elections, a system already suffering from the corrupting influence of campaign cash. Said Justice at Stake’s executive director Bert Brandenburg: “The public needs to be confident that our courts are fair and impartial, and not swayed by election cash. No one wants justice to be for sale.”

As the brief argues:

“Special interest spending on judicial elections-by corporations, labor unions, and other groups-poses an unprecedented threat to public trust in the courts and to the rights of litigants. . . Unleashing corporate treasury funds on judicial elections . . .  will distract judges from their most important job: guaranteeing impartial justice to the litigants who come before them.”

PMC is proud to join the Justice at Stake Campaign and our other partners in opposing any steps that would increase the influence of money in the judicial selection process. Our judges need to be concerned with following the law, not the currents of election cashflow.

More information about Citizens United is available on Gavel Grab.

This past weekend, the American Constitution Society held its annual conference in Washington D.C.  One of the panels addressed the United States Supreme Court’s decision in Caperton and its impact on states that elect judges.

According to the Blog of the Legal Times and Gavel Grab, the participants did not reach consensus on the best way to select judges, but we’re persuaded by a comment made by Rebecca Kourlis, former Colorado Supreme Court Justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver.  Responding to Justice At Stake’s Bert Brandenburg explaining that after Caperton “the problem then becomes how much is too much for a judge to accept and still hear a case,”  Judge Kourlis argued:

[E]ven asking that question is “unseemly.” By asking what the threshold is, she said, people are saying there is an amount that is acceptable. ” Any time money is in the courtroom, you’re going to have the perception that it is affecting the judge’s decision.”

Judge Kourlis advocates a Merit Selection system as the answer.  We agree with her: the only way to solve the problems caused by money in judicial elections is to get judges out of the fundraising business.

This weekend’s issue of Parade Magazine briefly recaps the Caperton v. Massey case and asks “Can Judges Be Bought?”  Justice At Stake’s Charles Hall is quoted:

If you were in court and found out that your opponent was one of the biggest contributors to the judge, would you be happy?  I think almost all Americans would say, ‘I want a different judge.’

There’s an on-line poll asking readers: “Should a judge be allowed to hear a case involving a campaign contributor?”  As of this writing, 93% of respondents answered “No.”  We’ll tune in for final results when the polls close.

Our friends at Gavel Grab offer a complete analysis of the Caperton v. Massey argument, including commentary from PMC, the League of Women Voters and other amici.  Gavel Grab quotes PMC Associate Director Shira Goodman:

“Pennsylvania, which elects all judges in partisan elections, has seen first hand the steadily increasing influence of money in judicial elections. Coupled with that has been the decreasing public confidence in the impartiality of our courts. The more money that comes in, the less confidence the people have. The scales of justice need to be rebalanced. A strong decision by the Supreme Court requiring recusal in at least some cases will help to do that.”

Also posted on Gavel Grab is an email Justice At Stake sent to its Partners (including PMC) about the case, concluding with this encouragement:

We now must wait until the Supreme Court rules, but the last few months already represent an extraordinary victory in educating the public on threats to our courts, and in commanding media attention on the critical issue of protecting impartial courts from special-interest money.

On Tuesday March 3, the United States Supreme Court will be hearing oral argument in Caperton v. Massey — the case from West Virginia involving whether or not judges must recuse from cases involving major campaign contributors.  PMC Executive Director Lynn A. Marks explained in PMC’s press release why this case is so important:

Pennsylvania elects all judges in partisan elections and has seen first hand the steadily increasing influence of money in judicial elections.  Coupled with that has been the decreasing public confidence in the impartiality of our courts.  The more money that comes in, the less confidence people have.

Earlier this year, PMC joined an amicus brief urging the Supreme Court to set some standards governing recusal in such cases.  A key part of the argument was that the essence of due process is a fair and impartial judge.  The brief discussed the history of judicial selection and noted that because of the increasing expense of elections and the growing importance of campaign contributions, “judicial elections have created a crisis in public confidence.”

As PMC Associate Director Shira Goodman explained in PMC’s press release:

Money in the judicial selection process has led the public to believe that the scales of justice are out of whack. This is unacceptable. A strong decision by the Supreme Court requiring recusal in at least some cases will help rebalance the scales.

We will be watching and reporting on the oral argument and further developments.  We also recommend that readers check out Justice At Stake’s Caperton Resource Page, as well as this recent article from the Pittsburgh Post-Gazette.