judgesonmerit.org

So, it’s the morning after.  As expected, very low voter turnout yesterday.  In the appellate court races, the Republican endorsed candidates won handily.  The Democrat for Superior Court was running unopposed. But the Democratic contest for Commonwealth Court is not yet determined, and it’ s possible that the unendorsed candidate who received a “not recommended” rating from the Pennsylvania Bar Association could be on the ballot in November.

In Philadelphia, ballot position and party endorsement were important factors in determining who won the very crowded races for Common Pleas Court.

So, what’s all this mean? That elections still aren’t designed to get the most qualified, fair and impartial judges on the bench.  Instead, elections generally reward luck (ballot position), political connections (party endorsement), and fundraising prowess.  Why should Pennsylvania be relying on such a system to pick officials whose job is to be fair, impartial, unbiased judges accountable to the law?

PMC representatives spent election day encouraging Pennsylvanians to vote while also pointing out the problems inherent in electing judges.  PMC’s Executive Director Lynn A. Marks spoke on PCN’s Call-In Show about how judges are different from other public officials and should therefore be selected in a different way.  Deputy Director Shira Goodman spoke about the issue and why electing judges doesn’t make sense on WHYY and WILK FM.

In addition, our letter in the Times-Leader argues: “The best way to solve the “money problem” is to get judges out of the fundraising business by ending the practice of electing judges.”

Our comments about the elections and how random factors have too great a role in deciding who gets on the bench can be found in the Philadelphia Inquirer and Daily News.  Most telling is an interview with Marks following her own trip to the voting booth:

‘I voted this morning. . . .I’m a politically active lawyer, and I didn’t know most of the people running. . . .’

‘It’s a crazy system to have people running very political campaigns for a job that’s supposed to be non-political and non-partisan.’

So, here at JudgesOnMerit, we’re doing our “Monday Morning Quarterbacking” and once again asking why we continue to elect judges this way.  We think it’s time for Pennsylvanians to get the opportunity to decide whether there is a better way to pick judges. We hope they will get that chance.

PMC Executive Director Lynn A. Marks will appear on PCN-TV’s Call-In Show tonight to discuss today’s judicial elections.  Also appearing will be Pennsylvania Bar Association President Matthew Creme and attorney Gary Hunt of Pittsburgh. The show will air at 7:00 pm. To call in, use PCN’s toll-free number 1-877-PA6-5001 (1-877-726-5001).

The Public Opinion of Chambersburg has an in-depth article about the upcoming judicial elections.  It opens with this assessment of how elections work:

Lawyers become judges with the help of their peers.  Judges will decide cases argued by the same lawyers who supported them or opposed them during the campaign.

Judicial candidates bristle at the suggestion they could play favorites or hold grudges from the bench. But, they fret about appearances.

The article notes that the four candidates running for two open judicial seats on the Franklin/Fulton County Court of Common Pleas each have the backing of local attorneys, and it goes on to explain that the campaign of one candidate is being run by the current District Attorney.  Asked about whether or how that will affect future cases heard by that candidate, PMC Executive Director Lynn A. Marks explained:

“I don’t know of anything legally or ethically wrong with that. . . . It will raise questions if she is elected. Will she be seen as partial to the district attorney’s office? It will raise a question when criminal cases come before her.”

The article explores the candidates’ positions on when recusal — especially in cases involving lawyers assisting the judicial campaign — would be appropriate.  In addition, the article raises the question of campaign fundraising; all of the candidates have accepted campaign contributions from attorneys.  This is permissible under the law and the Code of Judicial Conduct, but it does raise perception problems with the public:

Clients are less likely to understand and accept the process than their attorneys, according to [PMC's Marks]. When you’re in court, you shouldn’t have to worry about whether your attorney gave as much to the judge’s campaign as your opponent’s lawyer, she said.

This is a central problem with the judicial election process. The people who are most involved in the process — including as campaign contributors — are the lawyers who later practice before the judges.  This makes sense, but it may foster the public’s lack of confidence in the ability of the judges to later be impartial when those lawyers appear before them.   We need a better way to select judges.

The Allentown Morning Call, analyzing how often local judges end up presiding in cases involving campaign contributors, found that “[o]ut of seven judges examined, only one was found to have no cases involving significant donors.”  This review looked at the parties involved in civil cases, but did not include donations from lawyers or law firms.  The results compelled the following conclusion:

The instances underscore how judicial rules basically leave it up judges to decide whether they should recuse themselves from a case. They also demonstrate how Pennsylvania‘s system of electing judges leaves the bench vulnerable to claims of one-sidedness or worse, even though the donations are legal.

The article notes that there is growing public concern across the country that campaign contributions may affect a judge’s ability to rule impartially.  PMC Executive Director Lynn A. Marks summed up the perception problem: ”Think about yourself being in court and sitting and wondering whether your opponent or your opponent’s attorney made a large contribution to a judge.”

Clearly, this is something no one should ever have to worry about.  But an electoral system that requires judges and their campaigns to fundraise promotes such concerns.  It’s time to get judges out of the fundraising business.

The hot topic in Pennsylvania is the effect of contributions to judicial campaigns. Two papers ran features on the issue this weekend.  The Wilkesbarre Times-Leader posed this question:

Two lawyers appear in court. One donated thousands to the judge’s campaign and the other gave nothing. Will they be treated the same?

Absolutely, say five of the seven elected Luzerne County judges who accepted campaign donations from lawyers.

But getting people to believe that is a problem, said Shira Goodman [of PMC].

The Times-Leader interviewed several sitting judges about campaing contributions from lawyers and law firms.  Although the judges explained that the contributions do not influence their decision-making in the court room, they acknowledged that as elections become more expensive and as public hostility to lawyers grows, things might have to change.  Judge Thomas Burke explained that those changes might include Merit Selection:

“If we reach the point where the perception is that lawyer contributions – or any outside contributions to judicial campaigns – pose an unfair advantage that will tilt the level playing field in favor of one side or another, then we likely have to consider alternatives to the present system.”

The Pittsburgh Tribune-Review also examined the perception created by contributions to judicial campaigns.  According to Chief Justice Ronald Castille:

“It’s not a healthy situation. . . . I’ve seen those polls where the public thinks campaign contributions affect judges. It’s not healthy for the system. We want people to have confidence in the system.”

The article explained that there are no rules that outright prohibit a judge from hearing a case in which a lawyer or party contributed to the campaign.  PMC Executive Director Lynn Marks explained that this causes a fundamental problem: “When you go to court, you shouldn’t be worried whether your lawyer gave a campaign contribution.”

It is time to get judges out of the fundraising business.  Merit Selection can accomplish this. Chief Justice Castille favors Merit Selection.  It’s time to let the people of Pennsylvania weigh in.

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.

An article in the Allentown Morning Call offers a preview of what the upcoming judicial elections will look like. Noting that judicial candidates are limited in what they can tell voters, the article quotes Muhlenberg College political scientist Christopher Borick who explains:

The contests tend to boil down to name recognition, reputation and resume. The most likely candidate to succeed is someone who is well-known and has money and organization behind them.

These are not necessarily the factors that make someone a good judge. PMC Executive Director Lynn A. Marks is also quoted in the article explaining the problems inherent in electing judges:

[T]he state’s system distracts from what the focus should be: weighing qualifications and skills and determining who would be best on the bench.

Marks said she gets calls regularly from people who feel they didn’t get a fair hearing in court because the judge had taken campaign contributions from the other side.

We will be watching and reporting about how much money the judicial candidates are raising and from whom, what the candidates are saying to voters, and how the elections are playing out. Stay tuned.