Recent rulings by the U.S. Supreme Court have raised the issue of whether Nevada’s restrictions on judicial campaigning and fundraising infringe on First Amendment free-speech protections. The Nevada Supreme Court is deciding whether or not to overhaul the commission, which uses those rules to resole campaign disputes, and advise sitting judges who inquire about ethical issues.

The voters in Nevada recently rejected a proposal to eliminate judicial elections in favor of a Merit Selection system. Now, they’ll likely be faced with increasingly partisan judicial campaign rhetoric, and judges whose political savvy and fundraising skills are their most important qualifications for the bench. We hope that we can provide the voters of Pennsylvania with the opportunity to make a different choice.

First, Rose explains that the current Merit Selection system has done a good job finding qualified candidates to fill interim vacancies:

The commission has a balanced membership from all areas of the state, Republicans and Democrats, and half are non-lawyers. . . .

Members receive more information about the candidates that voters do (health, financial and bar association records) and spend days reviewing the information in the selection process. . . .

The commission works hard to select the three best qualified candidates, and the governors have in good faith tried to pick the best.

Rose also notes that money is a tremendous problem in the electoral system that would be eliminated by Merit Selection:

[M]oney plays an enormous role in the present process of electing judges and it is impossible to effectively regulate it.  First, no restriction can be placed on a candidate’s use of his or her own money — this the U.S. Supreme Court has clearly stated.

The candidate with more money will always have a great advantage in an election. . . .

Further, no restriction can be placed on private groups or individuals unconnected with the candidates from running their own campaign for or against a candidate.

Rose closes with this very practical, common-sense argument:

[T]here is no perfect way to select judges, but we should not throw our hands in the air and quit trying to improve the system.

We agree, and that’s why we keep working to implement a Merit Selection system for Pennsylvania’s appellate courts.

Although some observers worry that other ballot races, including the U.S. Senate race and gubernatorial election, will make it difficult to garner attention for the judicial selection question, others believe the issue will get the attention it deserves.  Dan Hart, a political consultant who supports passage of the initiative argues:

“There will be some lively debate on the issue and that’s what it deserves,” he says. “I think we’ll see a far more frank and honest discussion of this, rather than just a 30-second TV spot that gives you just talking points.

“You’ll see the print media write about it. There will be radio ads. And you’ll see the issue included in the debates with the candidates.”

We hope the people of Nevada get to fully explore this issue, and we also hope that Pennsylvanians will soon have the opportunity to engage in meaningful discussions about whether we should change the way we select appellate court judges.  It’s a serious issue worthy of serious discussion.

When I read about the Supreme Court decision requiring judges facing civil cases involving significant donors to their own election to recuse themselves, my first response was—this is a no-brainer! How could anyone be impartial in a decision where one of the litigants had donated millions of dollars to get them elected? More to the cynical point—why would anyone contribute that kind of money to get a judge elected unless one thought they might want that judge’s good favor somewhere down the line?

Huntley goes on to explain that she learned from discussing the case that the decision may lead to new problems, like an increasing number of recusal motions. She raises an interesting question about judges who try to recuse but later are ordered by a higher court to hear the case:

In Las Vegas, a judge attempted to recuse himself from a case involving a litigant who had contributed a small sum to the judge’s election. The Nevada Supreme Court instructed him to hear the case anyway.

We have an easy solution for both problems: get judges out of the fundraising business and eliminate the question of recusal in cases involving campaign contributors.  Huntley also seems to recognize that the electoral system is the root of the problem:

Caperton raises the potential for corruption that flows from the system of electing, rather than appointing, judges. Americans adopted the electoral system because it seemed less corrupt. But with election costs skyrocketing, interested donors have more opportunity to try to create a favorable judicial climate for themselves.

Electing judges doesn’t make sense.  Judges should not have to wrestle with whether to recuse because a contributor is in court.  And court-users and the public should not have to worry about whether or not the judge might be biased because of campaign contributors. The solution is clear: Merit Selection gets judges out of the fundraising business.  To us, that’s a no-brainer.

“I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race. Everyone interested in contribution had very specific interests. They mean to be buying a vote.”

While the metaphor may be unusual, it strikes at the heart of the problematic role of money in the judicial election process.

The bill at issue passed the Nevada legislature in 2007. If it passes a second time, it can go before the people of Nevada in a referendum to amend the constitution. This lengthy process is very much like the process for amending the Pennsylvania constitution. We hope the people of Nevada and Pennsylvania will get the opportunity to decide for themselves whether to change the way judges are selected.

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?

The news report bemoans the state of judicial elections in Nevada:

But even if no crime has been committed — and lawyers disagree on whether one was — the notion that such a conversation took place will confirm the worst cynicism about how campaigns and the judiciary work in our little backwater in the desert. That L.A. Times series [from 2006], headlined “A stacked judicial deck,” detailed how judges apparently were influenced by friendships and contributions — it was a manifesto for an appointive judicial selection process.

The public has grown increasingly concerned that campaign contributors get favored treatment in the courtroom.  This story raises a new question — could contributors use their money not to curry favor but to get unfavorable judges out of the courtroom?

Conspiracy theories and ugly tactics are de rigueur for October in even-numbered years. But what makes this different is the unmasking (again) of a system in which lawyers spend lots of money trying to get a favorable majority on the high court, where justices can help determine where millions of dollars in settlements will go or how much money deep pockets will save.

Whether or not the allegations in this story are proven to be true, the damage to the court system and the judiciary has been done.  This story reinforces the public perception that money matters in the courtroom, and it demonstrates once again why we need to get judges out of the fundraising business.