judgesonmerit.org

We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.”"  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

In an editorial today, the Philadelphia Inquirer urges the legislature to act on pending Merit Selection legislation.  Although the paper has supported Merit Selection for a long time, the impetus for the call today was the pending investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for improper use of her judicial staff for her judicial election campaigns.  The editorial first echoes PMC’s calls for Justice Orie Melvin to temporarily step down from her duties on the Court.   The editorial then explains:

The allegations alone ought to be enough to shake the public’s faith in the state’s system of electing its most powerful judges.

No matter what the outcome of the inquiry into the Orie sisters, the state judiciary would not have to weather such controversy if its top judges were chosen through a merit-based system of appointment, with voters’ concurrence through nonpartisan retention elections. . . .

With the Melvin controversy bringing renewed attention to Pennsylvania’s discredited system of electing judges, Harrisburg officials should seize the moment and move ahead on judicial reform.

We agree, and we hope the people of Pennsylvania will be given the chance to decide for themselves whether there is a better way to select appellate court judges.

The courts have become a football in Wisconsin’s ongoing political fights.  Wisconsin’s judges, like those in Pennsylvania, are elected, and judicial elections have become markedly more contentious since Wisconsin Gov. Scott Walker’s row with the state’s labor unions last year.  The Wisconsin State Journal has called for merit selection stating:

 Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing.  Lost in the process is the need for experience, independence and impartiality.

The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:

Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.

Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.

A poll conducted by Justice at Stake has shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today.  This highlights the dangers of judicial elections.  Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.

That’s the tile of an op-ed by two of our our partners — Justice at Stake’s Bert Brandenburg and the Brennan Center’s Adam Skaggs — in Reuters.  It explores  the growing problems caused by campaign contributions in judicial elections.  The authors recount the increasing costs of judicial elections, the source of the funding, and the rise of “super spenders.”  They then remind us that “Court cases are supposed to be decided by the law, not by who wrote the biggest campaign check to the judge.”  The public concern about this is also growing, as recent polling data reveals that “Voters clearly recognize the risks to fair and impartial courts when judges have to depend on deep-pocketed benefactors to gain a seat on the bench.

The role of money in judicial elections and the public perception that campaign contributions affect judicial decision-making are critical reasons to find a better way to choose judges.  Merit Selection takes judges out of the fundraising business; no longer would the public have to worry whether a lawyer or party in court had contributed to the campaign of one of the judges or justices deciding the case.

As we noted earlier this week, there is some talk in Virginia of changing the way judges are selected. Currently, they are appointed by the legislature.  An editorial in the dailypress.com approves of the Lieutenant Governor’s proposal to use a commission-based appointment system and outlines the benefits of nominating commissions:

Judges should not be politicians. A commission-based selection process by a broad-based group that examines the experience and credentials of candidates, conducts interviews and evaluates candidates’ fitness for service is more likely to produce an impartial and well-qualified judiciary than elections or legislative appointments.  A system that also includes retention votes makes judges accountable to the people at large for upholding the standards of integrity and conduct required by the position.

These are some of the very reasons we believe Pennsylvanians should consider implementing a Merit Selection system for the appellate courts.  We hope the people of Pennsylvania will soon have the opportunity to weigh in on this issue.

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.

A panel will meet December 6 in Afton, Minnesota, to debate whether the state should change the way it selects judges, according to a post on the Minnesota Senate Distrcit 57 GOP’s website.

A Constitutional amendment bill has recently been submitted to Minnesota’s legislature that would replace Minnesota’s contested judicial elections with a system in which judges initially are appointed by the governor, and would then be subject to retention elections at the end of a term.  Under the bill’s provisions, a special commission would be established to help the public evaluate judges’ performance.

This proposed model differs from what we have been advocating that Pennsylvania adopt – the governor of Minnesota would have complete discretion in the initial appointment of a judge, rather than have to select a candidate from a short list compiled by a nominating commission. The commission’s work in Minnesota would apparently be only to educate the public about performance, and to guide them during retention elections.

However, the sentiment is generally the same: that popular election of judges may not end up serving the actual needs of the public, and that the people of a state should be given the opportunity to decide for themselves what system would provide the best, most qualified judges. Senate District 57 Republican Party Chair Kellie Eigenheer notes that “everyone wants a judiciary that is fair, objective and enforces the law. The disagreement is how best to get that result – having the people elect judges, as we do now, or having the governor appoint judges based specific merit-based criteria.”

Public debates are critical to helping the people of a state understand what is at stake, and educate them about the alternatives to their current selection systems. We’d like to see similar debates in Pennsylvania, and soon, the chance for the people of both states to vote on how best to choose their judges.

It’s election day, and there are many important judicial elections on the ballot. Although we don’t think elections are the best way to choose judges, as long as this is the system in place, we urge voters to educate themselves and go to the polls.  You can find information about the elections on PMC’s current elections page and frequently asked questions page.  You can learn about the pending proposals to change the way we select appellate court judges on the Merit Selection legislation page.

PMC and PMCAction are pleased to announce that the House Judiciary Committee will be holding a hearing on Merit Selection on November 17 from 1:30-3:30 pm in Philadelphia.  The hearing will address the pending Merit Selection legislation, H.B. 1815 and H.B. 1816.

This hearing is an important step in the constitutional amendment process, a process that culminates in a referendum election in which the people of Pennsylvania decide whether to change how we select appellate court judges.  The hearing offers a chance to begin an important dialogue about this critical issue.  We are grateful to the House Judiciary Committee for providing the forum for this public discussion.

The hearing will be held at the University of Pennsylvania, Perelman Quadrangle, Cafe 58, First Floor, Irvine Auditorium.  The address is 3401 Spruce Street, Philadelphia, PA.

An editorial in the Philadelphia Inquirer reviews the finding of the New Politics of Judicial Elections 2009-2010 and concludes that it is time for Pennsylvania to change to Merit Selection.  Reviewing the very expensive 2009 Pennsylvania Supreme Court race and looking at the biggest sources of the campaign funding, the editorial notes, “Seeing that cascade of cash, more voters have reason to subscribe to the well-documented public perception that justice is for sale.”

The editorial cites polling data from Pennsylvanian and nationwide that demonstrates wide-spread public belief that campaign contributions affect judicial decision-making.  “That perception threatens to erode confidence in the state courts as places where every litigant can get a fair shake. ”

The recommended solution is Merit Selection:

With merit selection legislation pending in both the state House and Senate, and the support of five current and former governors, it’s time for Pennsylvania leaders to push forward. . . .[T]he facts on the impact of uncontrolled campaign funding, as well as majority public sentiment, are solidly behind making the switch to an appointed appellate judiciary.

We agree: it is time for Pennsylvanians to get the chance to weigh in on whether we are using the best system to choose our appellate court judges.  We hope they will get the opportunity.