judgesonmerit.org

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.

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

A new study by Texans for Public Justice finds that most of the money being contributed to the six candidates currently running for the Texas Supreme Court (three incumbents and three challengers) comes from lawyers and litigants who’ve had cases before the Court in the last three years.  Lawyers and law firms litigating before the Court comprised the biggest group of campaign contributors.

Texas — like Pennsylvania — is one of a handful of states that elects all its judges in partisan elections.  These elections have become increasingly expensive. As the new study demonstrates, the campaigns are funded in very large part by parties doing business before the state Supreme Court.  This only serves to solidify the public perception that money matters and affects judicial decisionmaking.

The study did not analyze the outcomes of the cases at issue, but only the degree to which campaign contributors are involved in Supreme Court litigation.  This focus highlights a major problem with electing judges — that campaign contributions foster a belief that “Justice is for Sale,” and weakens public confidence in the courts.   It doesn’t really matter if campaign contributors are winning more frequently than other litigants; if the public believes they get a benefit, the damage is done.