judgesonmerit.org

Some judges will be able to spend more of their time campaigning. The Pennsylvania Supreme Court recently amended the rule controlling campaigning for magisterial district judges and candidates for that office. While the previous rule allowed campaigning only in “the year they run for office,” the new rule permits campaigning to begin “immediately following the General Election in the year prior to the calendar year in which they may become a candidate for such office.” This lengthening of the campaign season means that magisterial district judges running for office have more time in which they are permitted to “attend political or party conventions or gatherings, speak to such gatherings or conventions on their own behalf, identify themselves as members of a political party, and contribute to their own campaign, a political party or political organization.”

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.

Editorials in the Pittsburgh Tribune-Review, Patriot-News, and Philadelphia Inquirer criticize Pennsylvania Supreme Court Chief Justice Ronald D. Castille for accepting expensive gifts and call for a change to the court’s rules. Under the current rules, created by the Pennsylvania Supreme Court, trial and appellate judges may accept gifts as long as gifts valued over $250 are publicly disclosed.

All three editorials explain that the acceptance of such gifts undermines the public’s faith in an impartial judiciary. In addition, they point out that this Supreme Court supported a gift ban for 15,000 state court employees and magisterial district judges. The ban came as a part of broad new ethics rules that Chief Justice Castille described as: “fundamental to a good-faith relationship between the judiciary . . .  and the citizens.” The inequity of these different standards for different courts is clear, and disclosure of gifts does not prevent the appearance of impropriety.

The Philadelphia Inquirer also correctly draws a comparison between the harm done to public opinion of the courts when judges accept gifts and that caused when judges fundraise and campaign in judicial elections. “Millions of dollars raised for judicial campaigns create the same perception that justice is for sale, most voters say.” The problem of judicial elections can be fixed by legislators and then voters in a referendum deciding to move to merit selection; the problem of court gifts can be solved by the Supreme Court changing the rules to ban all gifts. The public deserves to have confidence that the courts are fair and impartial, and that cannot occur while money from attorneys and businesses is ever-present in the system.

An article in the Philadelphia Inquirer reveals that Pennsylvania Supreme Court Chief Justice Ronald Castille is accepting gifts and trips from lawyers and businessmen. Although these gifts are disclosed in accordance with court rules, this practice reveals a disturbing truth about the courts in Pennsylvania. The Pennsylvania Supreme Court has ruled that it alone can set and enforce ethics rules for judges and lawyers, and the rule allows Pennsylvania jurists except for magistrate district judges and traffic court judges to accept gifts as long as they are disclosed. This rule differs from those in many states and the federal rules. Gifts made to Chief Justice Castille include dinners, plane rides, tickets to sporting events, and rounds of golf, and at times they come from people with cases before the court.

 Under the current rules, this practice is legal but very disturbing. When judges accept gifts from lawyers who come before them, it creates the same problem that exists when judges fundraise and collect campaign contributions – the appearance that justice is for sale. As the article points out: “Ethics experts say jurists should avoid taking anything that could give even an appearance of a conflict.” In addition, the model code designed by the American Bar Association says judges should not accept gifts that: “might be viewed as intended to influence the judge’s decision in a case.”

 Public perception of the impartiality of the court is hurt when judges accept gifts from lawyers or from people or entities that might later come before them in court. Disclosure of these gifts is not enough to combat this; judges should be prohibited from accepting the gifts – period.

An editorial in the Allentown Morning Call, inspired by the judicial scandal in Luzerne County, urges Pennsylvania to adopt a Merit Selection system.  The Luzerne scandal, which continues to broaden in scope, involves two state court judges pleading guilty to federal charges related to their allegedly receiving kickbacks for referring juvenile defendants to a particular detention facility.  The case has rocked Luzerne County and the entire state, and the Pennsylvania Supreme Court has taken action to have court operations reviewed and the juvenile cases reexamined.

The editorial lays blame not only at the feet of the judges involved in the scandal, but also argues the state Supreme Court should have intervened earlier.  Observing that redress is difficult, the editorial urges:

[T]here is a long-range reform that holds promise for improving the appellate courts, one that these pages have supported for years: Merit selection, instead of the political election of judges.

  The Pittsburgh Post Gazette has called for merit selection of judges since at least 2003, when the state Senate voted to confirm the appointment of William H. Lamb of Chester County to the Pennsylvania Supreme Court – a position he held for only a year.