judgesonmerit.org

The editorial board at the San Antonio Express-News is calling for a change in Texas’s judicial selection. Texas currently uses partisan elections to select judges, but the editorial board believes that politics and money play too large a role in the process. In addition to worrying about politicizing the judiciary, the editorial condemns the fact that: “judges also are forced to solicit campaign contributions, and the only people who care enough to contribute to a judicial race most likely have or will have business before the court.” It notes former Supreme Court Justice Sandra Day O’Connor’s position against judicial elections as well as the fact that many judges acknowledge the public’s “discomfort” with the money involved in the system.

The editorial goes on to encourage the Texas legislature to adopt merit selection. We agree that the combined appointive and elective elements of merit selection provide the best means of ensuring fair and impartial courts. The public deserves a judiciary it can be confident in, not one tied up in politics and money. Judges have a unique position, and should be insulated from the campaigning and fundraising that accompany elections.

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.

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.

Retired United States Supreme Court Justice Sandra Day O’Connor recently appeared on PBS’ News Hour to talk about civics education, judicial elections and having three women on the Supreme Court.  The whole interview is worth watching, but pay close attention to what Justice O’Connor has to say about judicial elections.  She explains her growing concern about judicial elections and its relation to the money problem.  She notes forcefully that elections bring money into the courtroom and urges that we need get the money out. Her preferred solution: Merit Selection which gets judges out of the fundraising business and offers the best way to get the most qualified, fair and impartial judges on our courts.

The problems with Pennsylvania’s judicial elections took a national spotlight this week. The Friday night primetime PBS news show “Bill Moyers Journal” was devoted this past week to the question we’ve been asking for a long time:

How would you feel if you were in court and knew that the opposing lawyer [or party] had contributed money to the judge’s campaign fund?

The show’s response to the question posed sends a grave warning to the citizens of Pennsylvania and of other states that elect judges:

This is not an improbable hypothetical question, but could be a commonplace occurrence in the . . states where judges must raise money to campaign for their seats — often from people with business before the court.

Though many states have elected judges since their founding, in the past 30 years, judicial elections have morphed from low-key affairs to big money campaigns. From 1999-2008, judicial candidates raised $200.4 million, more than double the $85.4 million raised in the previous decade (1989-1998).

Because of the costs of running such a campaign, critics contend that judges have had to become politicians and fundraisers rather than jurists.

Friday’s show discusses the expected impact the recent Citizens United decision will have on judicial elections, and starts with a re-airing of the jaw-dropping 1999 investigation that focused on “justice for sale” in 3 states, Pennsylvania, Louisiana, and Texas. In what can best be described as tragic irony, the 1999 show began in Wilkes-Barre, Pennsylvania, ground-zero for the infamous Luzerne County courthouse scandal, and details the tortuous fundraising and campaign strategizing required to get a seat on the Luzerne County bench.

One of the judges whose campaign for election was profiled, Peter Paul Olszewski, was not retained for another term in the 2009 retention election, in large part because of his perceived association with Michael Conahan, now charged with masterminding the cash-for-kids scandal. The 1999 segment quoted a candidate who ended up losing her election:

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: True enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It’s a system that disturbs even the winning media consultant.

This system surely can only further erode the confidence of Luzerne County and Pennsylvania citizens who have seen first-hand the corrosive influence of money on judicial conduct.

The full transcript of Friday’s show is available in three parts, here, here and here. The latest numbers in Pennsylvania, which the show’s website attributed to Pennsylvanians for Modern Courts, reflect that a record amount of money was spent on the latest race for a seat on the Commonwealth’s highest court.

The show helps make apparent why electing judges is so problematic: unlike other public officials, judges have to resolve disputes between parties on a daily basis. The expectation is that the judges will be completely impartial and fair to both sides. But when they are forced to raise money to get their seats, and when that money inevitably comes in from the very parties that appear before those judges, the public has a hard time believing that the justice being delivered is not influenced by that money.

The solution other states have found, that we believe Pennsylvania needs to implement, is to select judges based on merit, not fundraising abilities or other factors unrelated to a candidate’s qualifications as an impartial jurist.

BILL MOYERS: Do you think that [Justice O’Connor’s] idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. . . . Nothing’s perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

The problem is not that voters can’t make good decisions; it’s that the process of electing judges is a system that values fundraising and campaigning above qualifiscations. And in that kind of system, it’s very hard to cut through the rhetoric and soundbytes to get the information you need to make a good decision.

Last week, former United States Supreme Court Justice Sandra Day O’Connor joined members of the North Carolina Association of Women Attorneys and South Carolina Women Lawyers Association for dinner and discussion. As the Briefcase (the blog of the South Carolina Women Lawyers Association) reports, there was a wide-ranging discussion, including Justice O’Connor’s criticism of judicial elections.  During the question and answer period, Justice O’Connor offered more straight talk on judicial selection:

Question 3. A request from a lawyer in the Charlotte area for advice on how to change a system of judicial elections to merit selection.

“Put together some citizens, preferably some with some clout,” Justice O’Connor said. Voters want to keep their right to vote, and they can, in a system of merit selection plus retention elections. “Get judges in there and see how they do. If you don’t like them, vote them out,” she said. “That’s how you sell it.”

That makes sense to us.  Retention is a key part of the currently pending Merit Selection proposals in Pennsylvania for just that reason. Thanks, Justice O’Connor.

The Grand Junction Daily Sentinel reports that during the Aspen Ideas Festival last week, U.S Supreme Court Justice Stephen Breyer and former Justice Sandra Day O’Connor offered strong words for the states that elect judges. The Justices’ words should encourage the public to engage in a serious dialogue about judicial selection reform.

Justice O’Connor, a long-time supporter of Merit Selection, urged, “‘I think you can have very fair (merit-based) systems and I wish more states would do it.’”

Justice Breyer spoke about the Caperton case and noted that campaign contributions are “manifestations” of a larger problem: “‘It is that people more and more think of judges as junior-league politicians.  All the messages that come to people tell them that.’”

The electoral process, complete with party endorsements, campaign-trail rhetoric, television ads and robo calls, and the fundraising required to fund a state-wide campaign certainly add to the perception that judges are just like other elected officials.  We’ve been trying to get the message out that judges are different, and that they should be selected differently.

We hope the words of these respected jurists will help foster more serious discussion about implementing Merit Selection.

Former United States Supreme Court Justice Sandra Day O’Connor minced no words in describing her opinion about judicial elections to the American Bar Association Journal: “They’re awful. I hate them.”

Justice O’Connor’s comments came in an interview following her remarks to the ABA’s Summit on Fair and Impartial Courts. During those remarks, she warned:

“The public is growing increasingly skeptical of elected judges in particular.” She was referencing surveys showing that more than 70 percent of the public and more than a quarter of judges are considerably more distrustful of their judges than they have been in the past.

Public trust and confidence in courts and judges is the foundation on which our justice system rests. The confidence is increasingly undermined by expensive, divisive partisan elections.

Writing on the Blog of Legal Times, Tony Mauro noted that Justice O’Connor “voiced concern that the public will view judges as “just politicians in robes.”  But judges are different from other elected officials and play a very different role in our system of government.  Here’s the problem: If we continue to treat our future judges like other elected officials until the moment they take the bench — including requiring them to campaign and raise money like other candidates — how do we guarantee that judges can succesfully fulfill their special role?

Addressing the St. Joseph County Bar Association in Indiana, retired United States Supreme Court Justice Sandra Day O’Connor shared her wisdom and experience regarding judicial elections and declared that Merit Selection was the solution.  As the Chicago Tribune reports, Justice O’Connor explained that the money involved in judicial elections leads the public to have less confidence in judges:

“I hope that lawmakers will be cautious and look at what an independent judiciary has meant to this nation,” she said. “Our judges must be capable of staying above politics if they’re going to serve the function of making impartial decisions.”

This makes good sense.  We hope Pennsylvania will heed Justice O’Connors words.

Speaking at the Economic Club of Phoenix, retired United States Supreme Court Justice Sandra Day O’Connor made clear that electing judges does not work and that Merit Selection is the way to go.  As Knowledge@W.P.Carey reports, Justice O’Connor offered this assessment of the recusal question presented in Caperton v. Massey (the United States Supreme Court case asking whether judges must recuse when significant campaign contributors appear before them):

What surprises O’Connor about the case, she said, is that the state allowed such bias into the courtroom in the first place. The argument shouldn’t be about whether a judge should be forced to recuse himself from cases with litigants who financed his election campaign. Instead, O’Connor said, it should center on whether judges should be elected at all.

“[I]t strikes me as a sad state of affairs when a case like this becomes a question of constitutionality when it’s clearly bad policy for the state to allow that environment to exist in the first place,” she said.

Justice O’Connor believes that electing judges undermines the independence of the judiciary, especially because of the role of money in the campaigns and the identity of the donors:

“The basic precept of equal justice under the law requires that neither side of the dispute has an unfair advantage,” Justice O’Connor said. “I think you might be concerned if you were in court litigating some issue in front of a judge who had been given a bunch of money by your opponent.”

Justice O’Connor also expressed her view on the singe most important step to be taken to increase judicial independence:

“If I could do one thing to protect judicial independence in this country,” O’Connor said, “it would be to convince those states that still elect their judges to adopt a merit selection system and — short of that — at least do something to remove the vast sums of money being collected by judicial candidates, usually from litigants who appear before them in the courtroom.”

We hope Pennsylvania will soon heed Justice O’Connor’s words.