Apr 08 2014

A Better Way to Pick Judges

Published by under Merit Selection

It’s great to be a legislator in Virginia. You have control over judicial appointments and if you ever get bored in the General Assembly, there’s likely a cushy judgeship waiting for you.

Virginia is one of only two states in which judicial appointments are decided entirely by the legislature. This method of judicial selection has resulted in power politics spilling over into the states’ courtrooms.

In 2008, Norfolk County was left with three vacant judgeships for months as a result of a dispute between Sens. Ken Stolle and Yvonne Miller. A similar incident occurred in 2012 when conservative lawmakers delayed the nomination of Tracy Thorne-Begland’s nomination to Richmond’s General District Court because he was openly gay.

Additionally, Virginia lawmakers have been making courtrooms their retirement destinations. Judges are generally reappointed until they retire, and then enjoy a generous salary and state benefits. Lawmakers often trade-in their positions in the legislature for a cushy spot on the bench, further adding to the perception of an unfair judiciary.

Despite its apparent flaws, Virginia lawmakers have been unwilling to enact any changes to the states judicial election process. A measure that would bar legislators from accepting judicial appointments within four years of leaving the General Assembly was rejected. However, the General Assembly did approve the creation of twenty-seven new judgeships.

Judicial selection practices, such as the one in Virginia, create a ‘patronage’ system in which legislators have considerable control over judicial appointments. Legislators are given indirect control of the courts by their ability to choose judges. Gaining a judicial appointment then relies upon the “connections” that a candidate has in the legislature rather than his or her qualifications.

A better way of appointing judges is through merit selection. Under merit selection, judges are evaluated based solely on their credentials by a bipartisan citizen’s nominating commission consisting of lawyers and nonlawyers, which represent the diversity of the state. Once candidates have been screened, a short list is then sent to the governor who must nominate one of the individuals on the list. The judicial nominee must be confirmed by the Senate and then will sit for a shortened term before facing the public in a yes/no retention election. In this manner, nominees are chosen not for their personal relationships, but rather for their qualifications, experience and ability to fairly uphold the law. Merit selection increases public confidence in the judiciary.

Pennsylvania should see Virginia as a cautionary tale about the pitfalls of mixing politics with the judiciary. The current expensive, partisan election of Pennsylvania judges creates a negative public perception of politics influencing a supposedly independent and impartial judiciary. In order for Pennsylvania to preserve the public confidence of its judiciary, it needs to implement merit selection.

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Mar 26 2014

Arkansas’s Judicial Business

Arkansas Circuit Judge Mike Maggio recently stepped out of the 2014 race for a seat on the Arkansas Court of Appeals, after it was revealed that he was behind an online pseudonym linked to racist, homophobic, and sexist comments. However, despite the moral turpitude Judge Maggio demonstrated in committing these acts, it is what he did while still in the judicial race that lands him prime real estate on our blog today.

 

When Judge Maggio was running for reelection, he received at least $10,000 in contributions that were linked to a corporate chain of nursing homes owned by Michael Morton. Just a few days later, Judge Maggio issued a ruling that lowered a damages award against Morton’s company from $5.2 million to $1 million. No wonder the public thinks justice is for sale.

 

Even if the legal reasoning was sound, there were no errors, and Judge Maggio’s actions were otherwise beyond reproach, his ruling came literally days after receiving the campaign contribution. Regardless of the reality, it certainly “appears” as if Morton was able to spend $10,000 in return for a ruling that saved him over $4 million. Often, this appearance of impropriety is nearly as damaging to the public’s confidence in the courts as actual impropriety. Judicial

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decision-making should not appear to be a business transaction.

 

Here in Pennsylvania, we too select our judges through expensive, partisan judicial elections. So the same scenario that just occurred in Arkansas could easily arise in Pennsylvania. But why should we let it come to that? If we got rid of judicial elections and selected our judges based on merit, we wouldn’t have to worry about the spectre of campaign contributions influencing judicial decisions. Elections including those for judicial office, are won and lost based solely on the financial wherewithal of the campaign. Merit selection takes money out of the equation and replaces it with an in-depth review of the qualifications and experience of the prospective judge.

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Mar 25 2014

In the Interest of the Law

It’s been said before, ‘merit selection takes power away from the people to choose judges who represent them.’

But, that represents a fundamental misunderstanding of the role of a judge; judges should not represent the people who voted for them. Judges should represent the law and the ability to decide cases before them impartially.

Judges are expected to decide cases based on the facts and the law, not public opinion or campaign promises. In allowing lawyers, law firms and groups who often appear before the court the ability to donate to judicial campaigns, we risk the public perception that judges rule in favor of their supporters. This creates the impression that justice is for sale.

Merit selection allows citizens the opportunity for more meaningful participation in judicial selection. In reality, how much meaningful information is the public receiving about judicial candidates under the current judicial election system? The public is bombarded with numerous names (many of whom they probably never heard of) and the real worth of a candidate is lost beneath all the flashy political signs and slogans rampant in campaigns.

Under merit selection, the chaos of campaigning is removed thus allowing for more productive interaction between prospective judges and the public. Through the initial merit selection process, only the most qualified of applicants are given consideration for appointments. As members of the nominating commission, citizens are then able to engage in more meaningful consideration of nominees, rather then wading through lists of names. The public may also give input to the Governor before he or she makes the nomination and during the confirmation hearings before the Senate.

Most importantly, retention elections provide the public with another opportunity for engaged participation. Retention elections allow the public to decide whether a judge should stay on the bench based on the judge’s track record, not on his or her campaign capabilities.

The most important thing to remember is that while the public is still engaged through the nominating commission and retention election process, the law is still the primary concern. Both the nominating commission and the retention election is concerned about the ability of candidates to objectively represent the law, not a specific interest group.

In essence, merit selection is not about taking power away from the people, rather it’s about providing the public with the best chance of having a fair and impartial judiciary.

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Mar 10 2014

Cash Still King in Texas Judicial Elections

What’s the most important qualification a person needs to become a judge? Perhaps a sense of fairness, integrity, or knowledge of the law? Each of these qualifications are certainly important to becoming a judge, however, if former Texas Judge Steven Kirkland’s story is any indication, in Texas the most important qualification is money.

 

Texas is one of only 6 states (including Pennsylvania) that elects all judges in partisan elections. So when then judge Kirkland ruled against Houston based attorney George Fleming, in a 2011 case, Fleming took advantage of the judicial election system by seeking out and bank rolling a challenger to run against Kirkland in the democratic primary. Fleming’s investment paid off and Kirkland lost.

 

Money: 1 Judicial Qualifications: 0

 

Kirkland is currently running for judge in the 113th district in Texas, rather than his old seat in the 215th. Yet once again, Mr Fleming is having none of it. Still incensed about Kirkland’s decision against him, Fleming is currently bank rolling Kirkland’s primary opponent for judgeship in the 113th district of Texas.

 

The results of this current race remain to be seen, however, that’s hardly the point. Instead what we can learn from Kirkland’s experience, is how judicial elections allow money to skew what it takes to become a judge. Judges should be selected based on qualifications, integrity, and judicial temperament, not campaign acumen or fundraising prowess.

 

Kirkland may have been the fairest judge, the smartest judge, and demonstrated the most integrity amongst his colleagues. However, because he had the temerity to rule against Fleming, his career was derailed by a mountain of cash and Texans were deprived of a qualified judge.

 

Although nothing so extreme has happened in Pennsylvania, the expensive partisan judicial election system is ripe for abuse. Here too we can only hope that the judges who manage to raise the most money to get elected, also happen to be the most qualified to serve on the bench.

 

Or we could select them based on merit.

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Feb 27 2014

Justice for Sale

Published by under Merit Selection

The Wisconsin Supreme Court is currently hearing arguments regarding a probe into whether or not Republican candidates “coordinated” with special interest group donors during the 2011 and 2012 recall elections.

Two of the groups being investigated,  Wisconsin Club for Growth and Citizens for a Strong America, are large donors to several of the Justice’s campaigns. In 2011 Justice Prosser received over $1 million in campaign donations from the two groups, dwarfing his own $700,000 personal contribution. The two organizations also helped elect four other Justices to the Supreme Court. Under Wisconsin law, the Justices are not mandated to recuse themselves from cases involving their own donors. Additionally, the secretive nature of the John Doe case means that we may not immediately know how the judges rule in the case.

So, what’s the big deal? What is happening in Wisconsin is just another example of money corrupting the judicial selection process. Currently judicial elections depend upon financial contribution from donors, including lawyers, law firms and interests that have business before the court, to have any chance at being elected. This is not to say that judges rule in line with the wishes of their donors, but there is a problem of appearances at hand. When the public sees a judge presiding over a case involving a campaign donor, questions arise over the objectivity of the judges’ decisions. The reputation of fairness and impartiality is paramount to the success of the judicial system. Cases like the one in Wisconsin further reduce the public’s trust in the judicial system and ultimately undermine the Judiciary’s reputation.

Merit selection eliminates most of the money in the judicial election process. Through merit selection, judges are selected based on their credentials, not the size of their war chest. When a case is brought before a judge, the law and the facts of the case should determine the outcome, not how much one party donated to the judge’s campaign. Pennsylvania lawmakers should move forward on the proposals before them to implement merit selection for statewide judges. When justice is for sale, no one wins.

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Feb 25 2014

Playing Games with Justice

There is something peculiar happening in the LoneStar State this judicial campaign season. An impending Republican primary for Texas Supreme Court, has made strange bedfellows of Democratic trial attorneys, and Republican challengers, with the former raising money for the latter.

 

According to the Houston Chronicle, a coalition of Texans led by Democratic trial attorneys John Eddie Williams and Lisa Blue Baron, recently held a fundraiser for the political action committee Balance PAC, which supports three Republican challengers in primary races against incumbent Texas Supreme Court Justices. Political observers believe that the bipartisan fundraiser is an effort by Democrats to unseat incumbent Republican judges through primary challenges. This is just another symptom of Texas’s highly contentious judicial selection model.

 

Texas’s system of partisan judicial elections has, for years been fueled by special interest money from both sides of the aisle. Efforts to reform this system have

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equally been dogged by both political parties, making money a major issue in Texas’s judicial selection scheme.

 

Several attendees of the fundraiser were critical of Texas’s judicial selection scheme, including Republican plaintiff’s lawyer Mark Lanier. In a quote that seems the capture the dilemma that lawyers face in Texas under this system, Lanier stated “I think the partisan election of judges is the worst possible way to choose judges. I am not a fan, but I’ve got a responsibility to play in the system.” Balance PAC spokesman Eric Axel further noted that “This is a broad coalition of Texans who believe the court has been taken over by multinational corporations,” referring to the perception that corporations generally win on appeal in Texas, because they have the Supreme Court in their pockets.

 

Unfortunately, Pennsylvania also has partisan judicial elections. Unlike Texas, where the parties are working together to game the system, however, in Pennsylvania, the parties are working together to reform it. Last fall, Democratic Representative Brian Sims, joined Republican Representative Bryan Cutler, to introduce judicial merit selection legislation. This legislation would eliminate the perception that judges are influenced by campaign contributions and demonstrate Pennsylvania’s leadership in judicial reform. It’s time for Pennsylvania to move forward on merit selection for appellate judges.

 

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Feb 06 2014

Women, Minorities and Merit Selection

Published by under Merit Selection

Studies reported by the American Bar Association demonstrate that merit selection, when compared to other methods of judicial selection, produces the greatest number of women and minority judges.

Merit selection allows for greater diversity of applicants and reduces the potential of women and minority underrepresentation. Current merit selection legislation proposed by PMC emphasizes the importance of choosing a diverse Nominating Commission that reflects the demographic diversity of Pennsylvania. As noted by the American Bar Association, diverse nominating committees commonly result in more diverse judicial applicants and appointments.

Furthermore, as mentioned by retired Superior Court Judge Phyllis W. Beck during a talk with PMC’s Lynn Marks on merit selection, there is almost a “political guarantee” that women and minorities will be strongly represented in the applicant pool through merit selection. Underrepresented voting minorities can have more of an input under merit selection compared to the current election system. For example, governors, who nominate judges with Senate confirmation, can also prioritize the selection of qualified women and minority judges in their decision. Generally, elected officials are aware that it is in their best political interest to select individuals that reflect the varied demographics of their state.

If we want a judiciary that reflects the diversity of our society, merit selection is the way to go.

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Oct 25 2013

"Smart Talk": Perceived Corruption and Low Participation in Judicial Elections

Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, recently appeared on WITF’s “Smart Talk” radio program to discuss why Pennsylvania should pick judges through merit selection.

At one point in the program, the host, Scott LaMar, asked Marks “what makes a good judge?” Marks responded that good judges have extensive legal knowledge and experience, even temperaments, and reputations for ethical behavior both on and off the bench. Additionally, unlike other public officials, judges are not representatives of the people. Thus, good judges never base their decisions on public opinion like a legislator or a governor would. Instead, they decide cases based upon the facts and the law.

One of the major problems with contested elections is that they are incompatible with the role of judges as impartial arbitrators and “turn judges into politicians,” said Marks. This occurs because judges, particularly at the appellate level, must raise large sums of money to win. Most of this money comes from lawyers and special interest groups who regularly appear in court, and judges are not required to recuse themselves from cases involving individuals that have donated to their campaigns.

“I am not saying that judges are corrupt and are making decisions based on where [their campaign contributions] came from,” said Marks, but “most Pennsylvanians and most Americans believe that campaign contributions affect a way a judge decides cases.”

This is very problematic because the cornerstone of the judiciary is fairness, both real and perceived. If the people believe that judges can be bought, half of that cornerstone is ripped from the foundation of the justice system. Merit selection, however, preserves public confidence in the judiciary by eliminating most of the money from the judicial selection process.

The problems associated with judicial elections are not limited to perceptions of impropriety. Elections also limit the pool of qualified judicial candidates. According to Marks, many qualified lawyers don’t bother running for judicial office because they don’t have the campaign skills, access to money, or connections required to win. This is exemplified by the fact that only one Democrat ran in the last Supreme Court primary race. Under a merit selection system, however, candidates do not have to campaign to get into office. Instead, they apply for a judicial position, and they will be appointed if they are the most qualified candidate.

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Additionally, voter turnout in judicial elections is almost always very low. This may be due, at least in part, to the fact that it is difficult for voters to get the information necessary to make informed decisions, said Marks. Most media outlets refuse to cover judicial races in much detail, if at all, and most campaign advertisements contain little information other than generic recitations that the candidate is “fair-minded” and “tough on crime.”

In contrast, members of a citizens’ nominating commission thoroughly vet the candidates in a merit selection system. Specifically, they review applications, hold interviews and public hearings, read court opinions and other legal documents, and do other things that the general public simply does not have the time or resources to do. The commission then sends a list of nominees to the governor, who then appoints one of them, subject to Senate confirmation. Four years later, the appointee faces the voters in an uncontested retention election. Thus, the people retain the final say over which judges stay and which ones go.

It is also important to understand that merit selection does not amount to “taking away the power of the people to vote for judges” (a common accusation). A constitutional amendment is required to change the way in which judges in Pennsylvania are selected, so the people would be the ones deciding whether they want to embrace merit selection.

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Oct 11 2013

State Legislators: No More Excuses. Support this Bill

The Philadelphia Daily News editorial board summed it up perfectly:
 
“[Judicial elections are an] unseemly process whereby judges now grovel for the ever-escalating fortunes necessary to campaign for office, arriving on the bench indebted to donors, including lawyers who may appear before them on legal matters.”
 
Brian Sims (D-Philadelphia) and Bryan Cutler (R-Lancaster) want to

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change this “unseemly process”- they plan on introducing a merit selection resolution in the legislature.
 
The legislature has considered merit selection resolutions before, but it has turned them down. But things are different now. As the editorial pointed out, numerous scandals have shaken the public’s faith in the elected judiciary. For example, a state Supreme Court justice was recently convicted on campaign corruption charges; the Philadelphia Traffic Court was dissolved in the wake of the ticket-fixing scandal; and a current Supreme Court justice is being investigated by the FBI. Additionally, the Kids for Cash scandal is a not-to-distant memory. Unfortunately, this is far from an exhaustive list of recent judicial misconduct.
 
In addition to growing public mistrust of the judiciary, the Democrats and the Republicans appear to be now less divided on the issue of merit selection. According to the editorial, this is illustrated by the “wonderfully odd couple” that has sponsored the bill.
 
Brian Sims is an openly gay member of the state House of Representatives, and he actively works towards civil rights for the LGBT community, particularly the legalization of same-sex marriage. Bryan Cutler, on the other hand, is a pro-life proponent and a lifetime NRA member. He has even been honored by the American Conservative Union for his “exceptional” conservative voting record in the House.
 
“This admirable union of political opposites is meant to underscore the fact that merit selection isn’t a liberal issue or a conservative one,” the Daily News editorial stated. Instead, it is an “effort to inspire public confidence in the bench by removing the corrupting influences of money and partisan politics involved in electing judges.”
 
The editorial ended with a simple message:
 
“State legislators: no more excuses. Support this bill.”

 

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Jul 31 2013

Merit Selection Myths: "Elite Attorneys" Control Nominations

One of the most common criticisms of merit selection systems is that “elite” groups of attorneys are nominating judges. The frequently unstated implication is that since the nominators are lawyers, they are going to pick judges who will serve their interests rather than those of the general public.

There are a couple of problems with this argument. First, approximately three-quarters of the states (and the District of Columbia) use merit selection on some level, and all but a couple require there to be non-lawyers on their nominating commissions. Additionally, most states either require that their nominating commissions are composed of an equal number of lawyers and non-lawyers or require (or allow) non-lawyers to be the majority.

Second, the belief that the attorneys on nominating commissions vote based on self-interest is not supported by any evidence. Rather, it is simply a product of stereotypical conceptions of attorneys.

If one looks at the work the attorney and non-attorney members do on any given nominating commission, they will surely see that they nominate judges based upon merit. For example, the Supreme Court Nominating Commission in Kansas collects detailed applications, professional references and writing samples from candidates. The commissioners review all of this material and then conduct exhaustive background checks and interviews. It is only then that they make their decision on who they want to nominate.

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The process is similar in every other state that uses merit selection. And regardless of where you look, you will find that the commissions are made up of dedicated members who are willing to make personal sacrifices to fulfill their duties.

For example, members of the former Tennessee Judicial Nominating Commission would sometimes drive up to fourteen hours round-trip just to interview a candidate. Additionally, they would sacrifice family time, put their own work on hold, and use their vacation time from their regular employment to attend the unpaid Commission meetings. They did all this because they understood how important their work was.

If everyone was informed about the composition of nominating commissions, what type of work they do, and how hard the commissioners work, it is likely that very few people would claim that the commissions are just a bunch of “elite attorneys” choosing judges out of self-interest.

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