Saturday’s edition of the Birmingham News featured an editorial urging Alabama to enforce its sixteen-year-old law regulating judicial campaign contributions. The law requires that judges recuse themselves from cases in which a party or their lawyer donated $2000 or more to the judge’s campaign ($4000 for appellate judges). However, the law has not been enforced due to a standoff between the Alabama Supreme Court and the state Attorney General’s office: the Supreme Court refuses to write the rule required for the law to take effect, saying that the law requires preclearance from the U.S. Justice Department (due to Section V of the Voting Rights Act). However, the Attorney General has refused to seek pre-clearance, demanding that the judges author the rule.
A three judge-panel in D.C. recently refused to hear a challenge to the law, writing that the law had not harmed the plaintiff in any way. The judges wrote that the law was not likely to be enforced in the near future and that “until one of these two Alabama political institutions changes its policy, it is at the least a game of political chicken, with both players staring (or perhaps winking) at each other.” During the past decade, Alabama has had the most expensive judicial elections in the country, and the law would minimize the effect of campaign cash on the courts. Given the influence of campaign contributions on the Alabama judiciary, the editorial suggested that the state either enforce the law, or move to merit selection for statewide judgeships.
Enforcement of the law would indeed be a welcome step in the right direction and would hopefully curb the costs of Alabama’s judicial elections. However, it may not be a cure-all: the law does not require recusal for third-party spending. As we have seen recently in Wisconsin, even where direct contributions are limited, independent expenditures may still drive up the cost of judicial elections, enabling mud-slinging on both sides. Merit selection has been implimented successfully in several of Alabama’s counties and state-wide merit selection is a solution that Alabama should explore.
, appellate judges
, campaign contributions
Incoming president of the N.C. Bar Association, Martin Brinkley, shared with Citizen-Times that halting legislation intended to return NC to a partisan judicial election system is a priority for the NC Bar. In his interview, Brinkley said, “Being a judge shouldn’t have anything to do with politics…It ought to do with deciding cases on the law and the fact. We do not favor going back to the old system.”
The NC Bar’s position is in response to Senate Bill 47, which is expected to be introduced to the House during special session in mid-July. The bill has also raised concerns among voting rights advocates for its provisions limiting the period of early voting and repealing same-day voter registration. Another controversial provision of the bill outlines procedures for ballot positions ensuring that top spots go to Democrat and Republican backed candidates.
The debate surrounding SB47 highlights many of PMC’s concerns regarding judicial election. The NC Bar rejects the attempt to increase politicization of the judiciary; State Senator Tom Apodaca supports partisan races noting that “every party spends a ton of money” identifying candidates as Democrat or Republican; others decry ballot position gaming and increased obstacles to voting. While we agree that party identification, financial concerns, ballot position, and voter registration obstacles should not play any part in determining our judges, we also believe that merit selection is the better way to avoid these potential pitfalls inherent in judicial elections and achieve a fair, qualified and impartial judiciary.
, judicial elections
, Martin Brinkley
, North Carolina
, partisan elections
, Tom Apodaca
The perennial fight over selection of appellate judges in Tennessee is back on, according to an opinion piece published in The Tennessean on 1/30. In “Judge-selection system in state instills trust,” Dwight Lewis explains how the state’s Merit Selection system works, and notes support for the plan from former Tennessee Supreme Court justice, and newly inaugurated governor Bill Haslam. Haslam cites his own experiences on the campaign trail as a reason for supporting the current system, saying “[a]s somebody who has spent two years going across the state campaigning, I’m just not sure we want our Supreme Court judges to do that.”
A 1/27 piece by Nashville Scene’s Jeff Woods states the problems with judicial elections even more bluntly. “Conservatives want judges to sing for their supper and submit to contested elections — but will that pimp out the bench?” After a sharp critique of both sides of the argument, Woods concludes that the political reality doesn’t bode well for a change in Tennessee. At least not yet.
For this session anyway, the most likely outcome probably is none at all. The Tennessee Chamber of Commerce already is talking about the need to send the whole argument to a summer study committee — a favorite water-treading tactic. Lawmakers will have to make a decision by 2012, when the current law expires. Who knows — a few Christmases from now, you might be able to buy someone a judge.
Woods’ turn of phrase eloquently captures the issues facing elected appellate judges here in Pennsylvania. Our appellate judges and justices are, in essence, required to “sing for their supper” by campaigning for votes, wooing political parties and collecting campaign donations. Any time they rule on a case involving a political ally or campaign donor, they’re left open to accusations that they’ve decided to “pimp out the bench.”
That’s why we’re asking our state legislators, and the people of Pennsylvania, to support the switch to Merit Selection of appellate judges, and why we’re rooting for Tennessee to leave its Merit Selection plan intact. We’ll certainly be keeping an eye on this ongoing debate.
Tags: campaign contributions
, Merit Selection
, Tennessee Plan
One reason why we advocate for a change in the way Pennsylvania selects its appellate court judges is to relieve some of the political pressure on judges and justices. The duties of judges distinguish them from officials in executive or legislative positions. Politicians are supposed to act on behalf of their constituents, and are expected to weigh the reaction of their party and the voters when deciding how to act. Judges, on the other hand, are supposed to be politically impartial. They are expected to base their rulings on the law, even – perhaps especially – if those rulings are unpopular, either with the voters or with a particular political party.
Slate columnist Dahlia Lithwick captures this sentiment perfectly. In a recent piece on the attendance of the annual State Of The Union address by the Justices of the United States Supreme Court, Lithwick writes:
The justices attend the State of the Union in their identical black robes for the same reason they are expected to sit there impassively amid the mayhem: They are supposed to be a testament to the fact that they are different from the elected officials all around them. Instead of complaining about how awkward it is to have to hide their feelings and ideologies, the justices should avail themselves of this once-a-year opportunity to show the public that their feelings and ideologies don’t matter in the first instanc[emphasis added].
Contrast this with appellate judges in Pennsylvania. No matter how fair or impartial the judge who’s finally elected, it’s very difficult to even get on the ballot without winning the favor of a state political party. Moreover, judges can’t get on the bench without stumping for votes and raising campaign contributions, just like any other politician. Is it any wonder that a majority of Americans believe that campaign contributions have an influence on judicial rulings?
This is why we favor Merit Selection for Pennsylvania’s appellate judges. To honor that distinction between partisan politicians and impartial judges. To get judges out of the business of running political campaigns and raising campaign funds, and to restore the trust of Pennsylvanians in a fair and unbiased judicial system.
, Dahlia Lithwick
, Merit Selection
Monday’s Pittsburgh Post-Gazette reprints a commentary from the Legal Intelligencer, looking at how the politics of our Supreme Court justices could influence the outcome if the Court is called upon to weigh in on redistricting in the upcoming legislative session. “There is little question,” according to the piece, “that the courts — federal and state — can be the crucial player in political district line-drawing.”
The commentary looks at the politics of the justices, which turn out to be more complex than they seem at first blush, and reaches a hopeful conclusion. Anyone who relies solely on the party affiliation of the justices to predict how they’ll vote is bound to be mistaken.
If there is a dispute, it will be up to a neutral referee to call a foul or let redistricting plans become law.
That referee — the Supreme Court — may be more neutral, and more unpredictable, than Republicans are banking on and Democrats may fear.
It’s very troubling to us that an analysis of how a Supreme Court justice’s party affiliation will affect a vote is necessary. Why do we even have to ask the question? Why should the personal politics of our Supreme Court justices factor into their decision on any case?
The answer, of course, is because those justices, like all judges in Pennsylvania, are chosen in contested, partisan elections. They run under the banner of a political party, and the parties contribute significant amounts of money to promote their preferred judicial candidates. As a result, the decisions (real and hypothetical) of even the most impartial, fair-minded justice are open to the implication that they were influenced by party politics, and by party donations to a campaign fund.
We think the best way to combat the perception that politics and campaign funding might influence a judge’s rulings is to replace election of appellate judges with a Merit Selection system. Merit Selection eliminates the need for judges to raise campaign cash, and minimizes the role of party politics in the selection process. So if the Pennsylvania Supreme Court is forced to weigh in on a political issue, our editorial writers will have to look deeper than the party affiliation of the justices when trying to predict the outcome.
, Pennsylvania Supreme Court
Well, let’s clarify that. You should vote on November 3rd, and you should do as much research as possible about the candidates for the seven appellate-level court seats up for grabs this year. We even offer information about the candidates on our website here. But that is because we have to work with the system we have, and this is a system in serious need of change. Pennsylvania is one of only six states in which all judges are elected in partisan contests. This means, they are nominated by political parties and run on a party ticket.
Popular elections don’t make sense for judges, and partisan elections make even less sense. Judges must have a great degree of skill and knowledge to do their jobs, and their decisions often have important and far-reaching consequences. But they are not political leaders. By requiring judges to run for office, however, we inadvertently require them to act like political figures, and often end up making selection decisions based on how well they can campaign and raise campaign funds rather than on their skills, experience and qualifications.
Imagine the following scenario. Your neighbor is running for judge on your political party’s ticket. You help her campaign, distribute flyers, and raise money. Down the street, or across town, your business rival does the same for a candidate on his political party’s ticket. Your candidate loses. You and your rival then get into a contract dispute. You and your rival land in court, and your rival’s candidate, now judge (or justice) presides over the case. Sound like fun?
Judges are meant to be impartial. They are supposed to make objective evaluations of the law to ensure maximum fairness to both parties. They are not supposed to have constituents nor favor anyone because of personal opinions, political support or campaign contributions. Elections force judges to focus on the wrong things. There is a better way to put judges in office (click to see our proposal for a merit selection system of judges – bills are currently before the state house and senate).
, Merit Selection
Cristina Janney, the news director of the Newton Kansan, has written a column about the upcoming judicial elections and retention elections. Some Kansas counties use elections and some use Merit Selection to pick their judges. Janney explains why she would choose Merit Selection:
I have lived in counties that have used both processes, and I believe I prefer merit selection with votes to retain. I think the judicial system is the best off when there is the least amount of political pressure exerted on the system. Justice should be about the law, experience and competence not a popularity contest.
We couldn’t have said it better.
Janney’s column is filled with more good advice about how voters can educate themselves about judicial candidates and judges standing for retention. And she sums up simply why voters should care about who becomes a judge:
[T]his is important. These judges hold the reins of our judicial system. They preside of [sic] over criminal cases of the most heinous of criminals, million-dollar lawsuits and hold people’s lives in their hands.
Janney’s words should resonate with voters everywhere. Thoughtful, knowledgeable, responsible and (above all) fair and impartial judges are critical to the functioning of our legal system.
Choosing appellate judges shouldn’t be a contest of political clout and campaign fundraising. Merit Selection puts the focus back on the ability and qualifications of judicial candidates. We hope that, as they learn more about Merit Selection, the voters of Pennsylvania will agree that it’s a better way to choose our appellate judges.
Tags: Cristina Janney
, judicial elections
, Merit Selection
, Newton Kansan
An article about campaign financing in a state legislative race raises ethical issues that echo concerns about judicial campaigns. Candidate Todd Stephens is a Montgomery County assistant district attorney. His opponent’s campaign charges that Stephens is accepting campaign donations from defense attorneys and law firms whose clients he’s scheduled to prosecute.
Shira Goodman, associate director for Pennsylvanians for Modern Courts, was interviewed for the story, and she explained that “Stephens faces the same challenge as those running for judge.”
Who else is going to give money to judicial campaigns? Not the general public. [Candidates] are going to raise money from people they know in the community and from those they know through work … those who believe they would do a good job.
Stephens hasn’t broken any laws, nor has he violated any policy of the district attorney’s office. The article doesn’t offer any evidence that he’s done his job differently since he started accepting campaign donations. Yet he’s facing questions about his integrity, based on contributions from donors who may simply be supporting their colleague’s political aspirations.
Judges face an even thornier dilemma when they’re forced to raise gobs of campaign money in order to win elections. Unlike legislators, judges are supposed to be impartial, applying the law fairly, even if it conflicts with their political philosophies. Campaign donations from attorneys, or entities that spend a lot of time litigating, create the perception that money might have some effect on a judge’s impartiality.
As spending on judicial campaigns continues to increase, the ethics of judges are questioned. Decisions involving donors are scrutinized and second-guessed. Public confidence in the fairness of the judiciary erodes.
Merit Selection solves the donation dilemma for judicial candidates. There can’t be a perception of influence from campaign donors if becoming a judge doesn’t require waging an expensive political campaign. It’s time that we brought Merit Selection of appellate judges to Pennsylvania, so that the public can have confidence in the impartiality of our appellate courts, and appellate judges can take the bench without fear of the donation dilemma.
Tags: campaign contributions
, Merit Selection
, Todd Stephens
In a poignant letter published in the Leader-Telegram, one Wisconsin voter describes how disillusioned recent judicial elections have left him:
The last two state Supreme Court races have destroyed the respect I once had [for the judicial branch]. These races are by law supposed to be nonpartisan, but these last two races have been closer to a cattle auction than any elections I have ever seen.
This captures the essence of the problem with judicial elections. Because of the partisanship and money involved, regular people lose confidence in the impartiality of the judiciary. The third branch of government has neither the power of the sword nor the purse. Its power stems from the trust of the people. By electing judges, we squander that trust.
The Wisconsin voter laments, “Wisconsin may be the national leader of the worst examples of how not to select the top judicial leaders of state government.” Hopefully, Pennsylvanians will choose Merit Selection for the appellate courts and avoid similar disillusionment and further erosion in public confidence in the courts.
, Merit Selection
, other states
Donald Hoffman, a freelance columnist, has written a thoughtful piece in the Allentown Morning Call on the need for reform and improvement throughout Pennsylvania’s state government. He’s included a concise summary of the advantages of Merit Selection:
Every judicial election, voters choose judges who’ve maneuvered the path of partisan politics but whose names they’ve never heard of. Judges should be nominated by the executive [and] scrutinized for approval by legislators, and serve independently of political party bosses and campaigns.
Well put. Hoffman identifies two areas that Merit Selection addresses better than partisan elections: seating the most qualified judges, and having judges decide cases impartially.
In the Merit Selection system that’s been proposed for Pennsylvania’s appellate courts, the state senate would evaluate nominees who have also been vetted by a nonpartisan citizen-based nominating commission and the governor. These three stages of evaluation help ensure that we get superior jurists on the bench. Then, those judges stand before the public in nonpartisan retention elections; first after a four-year term and every ten years thereafter.
The benefits of so many layers of evaluation and scrutiny don’t just mean that we get the most qualified judges on the appellate courts. It also enables the judges to serve impartially, removed from the influence of special interests that contribute to judicial election campaigns.
We’re happy to see Merit Selection included as part of a call for meaningful reform in Pennsylvania government.
, Merit Selection