judgesonmerit.org

In the wake of the United States Supreme Court’s decision in Caperton v. Massey, many states decided to review their rules governing recusal.  Michigan  last week formally issued a new recusal rule that includes a provision empowering the entire Supreme Court to review and overrule the refusal of one of the justices to recuse. Our friends at Gavel Grab have a detailed analysis of the continuing bitter debate between the current justices regarding this rule.

What grabs our attention is the particular focus of the dissenting justices on the “rights of elected judges” and those who voted for them.  Here’s part of Justice Maura Corrigan’s commentary dissenting from the rule change:

For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interested [sic] in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections than justices of this Court.

When it comes to the courts and fair trials, we’ve always been most concerned about the litigants having a fair trial.  Certainly, a litigant’s right to have a fair and impartial judge outweighs a judge’s right to hear a particular case.  And, frankly, a litigant’s rights — even in traffic court — should be of more concern to everyone who cares about justice than the judge’s right to preside over a particular case.

Chief Justice Marilyn Jean Kelly made a similar point in her response to the dissenters:

[I]t is a gross perversion of law for Justice Corrigan to allege that, ‘In one administrative order [the recusal rule], the majority takes away the right of every citizen of Michigan to have his or her vote count.’ The accurate statement is, with this rule, the Court permits a justice’s recusal where that justice is unable to render an unbiased decision and unable or unwilling to acknowledge that fact. The justice system and this Court can only be stronger for it.

Winning an election does not give a judge the right to preside over any or every case that comes before the Court.  Nor does voting for a particular judge give the public the right to have that judge preside over any or every case that comes before the Court.  A judge should only hear a case if it is certain he or she can be fair and impartial.

The results at the ballot box should not dictate when a judge is free from bias in a particular case.  In face, as we have argued repeatedly, it is precisely because judges are elected that strong recusal rules are necessary. The fact that some — including some state Supreme Court justices in Michigan — seem to believe that election returns are more important than ensuring a fair and impartial court — should be of great concern to us all.

We know that many, many people are concerned about the influence of campaign contributions on judicial decision-making.  But is there really a link or is it all just a question of perception?  The National Law Journal is reporting on a new study about the link between campaign contributions and decisions in the courtroom: “Is justice for sale? There is a strong relationship between campaign contributions and decisions by state Supreme Court judges in states that elect those judges, a recent study finds.”  The study found the link to be strong in states that elect judges in partisan contests.

The study by political scientists Chris Bonneau of the University of Pittsburgh and Damon Cann of Utah State University looked at three states — Nevada, Texas and Michigan.  Michigan and Texas use partisan elections to select judges, and Nevada uses nonpartisan elections. The influence of campaign contributions on decision-making — when other factors such as ideology were controlled for — was stronger in the partisan election states.

This is important information for Pennsylvanians to hear as we enter judicial election season.  Remember, we’re one of those states that uses partisan elections.  Isn’t it time to get judges out of the fundraising business?

An editorial in the Grand Rapids Press bemoans the current partisanship on Michigan’s Supreme Court and notes that combined with the expensive, partisan, divisive electoral system, this is reducing public confidence in the courts:

The bruising November judicial election, which saw former Chief Justice Clifford Taylor ousted by then Wayne County Circuit Judge Diane Hathaway, adds to a compelling case for changing the way the state chooses its most important jurists. Michigan should seriously consider appointing its justices. The court’s dignity and influence have been impaired in recent years by the judicial combat during election campaigns.

The editorial offers several suggestions for reform, including variations on appointment by the Governor with retention elections, apppointment by the governor with legislative confirmation, and Merit Selection:

Legislators and party leaders should sit down for a serious debate about judicial election reform. The unseemly spectacle of the women and men of our judiciary engaged in partisan mud-slinging contests can tarnish the public’s view of the judiciary as an independent body.

Well put.  And so Michigan joins the list of states that look to reform following a tough judicial election season.  We hope the calls for reform grow louder as time goes on.  And we hope that Pennsylvania also engages in a serious discussion about whether judicial elections are the best way to select our appellate judges.

Last week, we wrote about the amount of money spent during the recent judicial election season on television ads, both by the candidates and by third parties.  Now, FactCheck.org breaks down the elections by focusing on some of the most controversial ads of the season:

Another election, another set of bare-fisted battles for state Supreme Court seats.  Think the presidential campaign ads were uncivil and misleading?  Well. . . they were.  But so were those put on the air by judicial candidates and their backers, who no longer blink at spending in the millions of dollars.

FactCheck.org looks at ads from the Supreme Court races in Missiissippi and Michigan, analyzing the claims made in the ads and calling out the misstatements and questionable claims.

Should millions of dollars and misleading ads be the hallmarks of judicial selection or is there a better way to choose appellate judges?

The race for the Michigan Supreme Court is heating up with the candidates having raised more than two million dollars already.  But, as a new report from the Michigan Campaign Finance Network explains, the election is costing much more than that: third party spending on television ads for the candidates is nearly two million dollars to date.  That’s about four million dollars so far to determine who’s going to get a job that is supposed to require fairness and impartiality and that the winner must not appear to favor those who helped him or her get there.

The third parties doing the spending: the Michigan Chamber of Commerce and the Michigan Democratic State Central Committee.  Gavel Grab has good descriptions of and links to some of the ads running in this campaign.  Because their ads don’t directly mention voting, these third-party groups don’t have to report their spending or disclose the source of their finances.  Many see this is a growing problem in judicial elections:

‘The peril in this is that an individual or interest group could secretly spend a million dollars to market a candidate – a very important contribution, and then have that justice vote to select its case and rule on its case,’ said Rich Robinson of the Michigan Campaign Finance Network. ‘That has considerable potential for conflict of interests and it certainly creates a troubling appearance.’

Pennsylvania faced similar issues last year when an out-of-state group ran “issue ads” marketing a candidate but not directly asking for votes.  The answer is to get money out of the judicial selection process by using a different way to pick judges that doesn’t rely on fundraising, campaigning and television ads.  We think the solution is Merit Selection for the appellate courts.

An editorial in the South Bend Tribune decries the huge amounts of money being spent in neighboring Michigan for a single seat on the Supreme Court. It is anticipated that nearly twenty million dollars will be spent on this campaign, and at this point, the Democrats haven’t even named a candidate to challenge sitting Chief Justice Clifford Taylor. The editorial notes, “It’s lucky that justice is blind to this mess.”

Observing that the campaign is the focus of a battle over tort reform efforts, the South Bend Tribune boasts “Indiana, of course, sidesteps this particular problem by appointing its Supreme Court justices.” In fact, Indiana’s appellate courts are selected through a Merit Selection process, with a nominating commission, appointment by the governor and retention elections.

The editorial concludes by recognizing that Indiana’s system might not work for every state, but recommending that Michigan “take a look at revising the selection process for its high court so that the best candidate is determined by his or her qualifications and the input of citizens — not by special interests seeking an advocate.” This is good advice for Michigan, and for Pennsylvania, where we elect all our appellate judges in partisan elections.