judgesonmerit.org

Ohio Chief Justice Thomas Moyer spoke out strongly against the poisonous influence of money in judicial elections during a recent address to the Columbus Metropolitan Club.  Dispatch Politics, a division of the Columbus Dispatch, reports that Chief Justice Moyer urged: “‘We must reduce the role of fundraising in judicial campaigns . . . It’s corrosive.’”

He further noted that the money problem undermines confidence in the judiciary and courts across the board, noting that “polls have shown that most people — and even many judges — believe that rulings are influenced by campaign contributions.” This is not new information, but when the Chief Justice takes note of this data, people should listen carefully.

Chief Justice Moyer promoted a Merit Selection system in which the Governor selects a candidate from a field of three recommended by a nominating commission.  Judges selected this way would stand in uncontested retention elections.

We hope that people in Ohio — and Pennsylvania — will heed Chief Justice Moyer’s call for reform.

An editorial in the Fort Wayne Journal Gazette suggests that Merit Selection might be the solution to the problems of money and politics influencing judicial selection. Faced with a mixed system in which some judges are elected in partisan contests, others run in nonpartisan elections and still others reach office through a Merit Selection system, the editorial opines “Hoosiers and their lawmakers should reconsider whether having judges run for office is really the best way to achieve justice.”

The editorial focuses on Allen County—which contains Fort Wayne. That county had appointed judges until the 1980s, “when a state lawmaker – with little public demand – changed the method to a non-partisan election.” Further:

“[I]ncumbent Allen County judges are rarely challenged and seldom – if ever – defeated. More telling, many judges retire midterm, when their successor will be appointed. Allen County has a judicial nominating commission that examines applications and submits three names to the governor, who appoints the judge.”

The editorial notes that this system could be easily adapted into a Merit Selection system to fill all judicial posts. The editorial board is on the right track—Merit Selection is worth a look in Indiana counties that elect their judges, and in plenty of other places as well.

An AP report on WCCO in Wisconsin informs us that Chief Justice Shirley Abrahamson set a new fundraising record in her recent reelection campaign.  She raised $1.47 million. This was enough to break the $1.45 million record set just two years ago in another race for the state Supreme Court.

Where did Chief Justice Abrahamson’s donations come from? “Abrahamson loaned her campaign $50,000 and raised the rest from a range of supporters, including some lawyers who appear in her courtroom.”

This is just a taste of what’s to come in judicial elections — increased fundraising from the usual donors — lawyers, lawfirms and entities who frequently litigate in the state courts.

An editorial in the News & Record of Greensboro, NC highlights one of the big problems with judicial elections: voters don’t have a lot of information about the candidates running for the bench.  The editorial makes its point by demonstrating how much people know about U.S. Supreme Court nominee Sonia Sotomayor as opposed to the North Carolina Supreme Court justices they presumably voted for:

It’s a safe bet that most Americans know at least a few basic things about Sonia Sotomayor. . . .

In contrast, how many North Carolinians could name even one member of their state Supreme Court?

Probably very few, even though the voters elected each of the court’s seven justices. Judicial elections just don’t generate much interest. As a result, voters choose North Carolina’s Supreme Court justices, and judges at lower levels of the court system, generally with less information about the candidates than they have about someone nominated to serve on the U.S. Supreme Court, for whom they can’t vote.

This lack of information, which plagues all states that elect judges, is a problem because conscientious voters crave information on which to base decisions.  Instead, judicial elections provide them with party affilitation, county of residence and some yard-sign or television slogans which usually provide no guidance in determining if someone will make a good judge.

This is just one of many reasons judicial elections don’t make sense.

Bob Ewegen over at the Blackacre Journal shared his thoughts about Caperton earlier this week.  After a colorful retelling of the facts, Ewegan notes:

If you’re a fan of author John Grisham, you may recognize the plot of his latest legal thriller, The Appeal, which Grisham admits was inspired by the events in West Virginia.  And as rank as the fictional outcome or the real events may seem to fair-minded Americans, the same outrage could have been perpetrated in any of the thirty-nine states that still elect at least some of their judges in contested elections.

Ewegen notes that his state, Colorado avoids these problems because Colorado uses Merit Selection: “This system is infinitely preferable to letting rich litigators rig the scales of justice by paying millions to elect judges predisposed to their side to the courts that will decide the manipulators’ cases.”

Ewegen goes on to explain the Supreme Court’s decision in Caperton and concedes that the decision, combined with long-existing requirements that judges recuse if they have a direct financial outcome in the case may solve some problems.  But, he argues, “the real answer is for the thirty nine states that still elect judges in contested elections to adopt merit systems like Colorado’s.”

We agree and hope Pennsylvanians will be given the opportunity to decide whether to change the current judicial election system and adopt Merit Selection for the appellate courts.

In the wake of Caperton, an editorial in the San Antonio Express-News urges Texas to adopt Merit Selection for its judges.  Leading the charge for reform in Texas is the current Chief Justice of the Texas Supreme Court, Wallace Jefferson.  His support for Merit Selection continues a tradition begun by his predecessors on the bench; he is “the third successive Texas Supreme Court chief justice to advocate reforming the state’s judicial selection process.”

Jefferson had warned of the danger posed by money-packed judicial elections even before the Caperton decision came down, telling the state legislature earlier this year: “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”  The Express-News‘ editorial board concurs:

The judiciary system depends on an even playing field to maintain fairness.  And the influence of money and partisanship must be reduced to deliver the even playing field that Texans deserve.

That’s something everyone deserves — including Pennsylvanians.  The way to achieve that even playing field is by getting judges out of the fundraising business. The way to do that is to adopt Merit Selection.

An editorial in the News & Record of Greensboro, North Carolina examines the Caperton decision and how it impacts a state like North Carolina that uses a system of public financing for its judicial elections:

Although most statewide judicial candidates participate in a public campaign financing system, that’s not a safeguard against big-money influence. Blankenship contributed only $1,000 directly to Benjamin’s campaign. He gave $3 million for so-called independent expenditures on Benjamin’s behalf. The same thing could happen in North Carolina.

The editorial contends that the problem stems from the system of electing judges.   John Martin, chief judge of the N.C. Court of Appeals and chairman of the Judicial Standards Commission, concurs.  According to Judge Martin, “‘The real problem is the election of judges.’”

Following Judge Martin’s lead, the editorial argues:

[Judge Martin is] right. Political donors influence governors, legislators and other elected officials. Judges are expected to act with greater impartiality, and they should be challenged when there are reasonable questions. But money impacts elections, and judges may not be blind to where it comes from.

As long as North Carolina holds judicial elections, it may create opportunities for situations like the West Virginia case.

We agree completely.  Elections will always cost money — even when a viable public financing system is in place.  The answer is to get judges out of the fundraising business.  Merit Selection is the way to accomplish this.

During the last year, we’ve periodically reported about the legislative wrangling over whether or not to renew Tennesee’s Merit Selection system.  Well, it seems that Tennessee is sticking with Merit Selection and as the headline reads in the Tennessean “rejecting the election of judges.”

As the Tennessean reports, the House and Senate have each passed bills to maintain the current system, which uses a nominating commission and retention elections.  There will be some changes to the process, including a reduction in the number of lawyers on the nominating commission.

The Chattanoogan‘s report offers a run down of the votes and also quotes Tennesse Bar President Buck Lewis: “‘We are pleased that it now appears that Tennessee will continue to have a system of merit selection and retention elections for appellate judges.’”

Smart move, Tennessee.

An editorial in the  Wisconsin State Journal urges the adoption of Merit Selection in the face of increasing concerns about the role of money in judicial elections and the pressure on judges to state their opinions during judicial campaigns.  In fact, there is now a pending recusal motion based on a Supreme Court justice’s campaign trail statements about sentencing decisions and procedural issues in criminal cases. The editorial notes:

[The recusal] request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin’s have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.

The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?

Studies across the nation reveal decreasing public confidence in the courts, in large part due to the role of money in judicial campaigns.  It is crucial to maintain the public trust in the fairness and impartiality of our courts.  Without that trust, the foundation of our system is undermined.

Why continue to use a system of judicial selection that results in a lack of public confidence in our judges and courts?  The Wisconsin State Journal has a good solution for Wisconsin and Pennsylvania: “Reform is required. Merit selection is the right choice.”

Sheila Seuss Kennedy, a professor of law and public policy in Indiana, published an op-ed in the Indianopolis Star making the case against electing judges:

What’s wrong with electing judges? The answer to that question involves the nature of a judge’s job.

The ideal jurist should have solid legal skills, a “judicial temperament,” and unquestioned integrity. Most importantly, he or she must be guided by the rule of law — not the desires of the electorate. People who argue for judicial elections in order to get judges who will be “responsive to the voters” do not understand the role of the judiciary in American law. . . .

In our system, the legislature is the branch of government accountable to the electorate; the judiciary is accountable to the constitution and the law.

This makes sense to us. Judges are different, and it only stands to reason that they should be selected differently than other public officials.  After all, if you treat judges like all other public officials until the moment they take the bench, what guarantees that they will be treated and will act differently from other public officials when they are sitting on the bench?

Kennedy also notes that the electoral process and its emphasis on fundraising cause real concern for the public:

When I was practicing law, it wasn’t uncommon for clients to express apprehension about going to court. Among their concerns was the relationship between the judge and the lawyer representing the adverse party: Were they poker buddies? Had the lawyer contributed to this judge’s campaign? Did he or she practice with a law firm that had hosted a fundraiser for the judge?

It is disturbing that so many people share these worries.  The electoral system fosters these concerns and does nothing to alleviate them.  Merit Selection gets judges out of the fundraising business and recognizes the unique role judges play in our system of government.  It’s time for a change.