We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.”"  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

Recently, we reported that a debate was held in Minnesota about whether to change the way judges are selected.  Now, we’re reading that similar debates are being held and questions raised about judicial selection in Tennessee, Virginia, and Wisconsin.  While each of these states is different and has its own unique experiences in the judicial selection arena, the critical point is that the issue is being publicly discussed.  These discussions are important steps in the lengthy process of changing how judges are selected.  It is essential that the public be engaged and have the opportunity to debate and discuss the issue.

We know Pennsylvanians have strong views about how judges should be selected, and we also know that Pennsylvanians want the opportunity to decide if there is a better way to select judges than the current electoral process. Merit Selection bills are pending in both houses of the legislature, and it anticipated that the House Judiciary Committee will reschedule the public hearing that was initially scheduled for November.

We hope that Pennsylvania will soon be talking about judicial selection as well.  It is time.

An article in Reuters examines an effort occupying several states: the quest to find a better way to select judges.

The article profiles the ongoing debate in Tennessee over whether to continue its Merit Selection system.  Defenders of the current system, including the legal and business communities, argue that ” judicial elections would lead to expensive campaigns — that they’d be asked to bankroll — and biased judges.”  By contrast, those pressing to change the system are eager to get more conservative Republicans on the bench.

The article also looks to Pennsylvania, recognizing the recent introduction of Merit Selection legislation designed as “an an effort to rein in the role of money and fundraising in judicial elections.”  We hope this effort will be successful and will lead to the opportunity for Pennsylvanians to decide how they want to choose appellate court judges.  (Remember, amending the Constitution to implement Merit Selection requires identical legislation to pass in two successive sessions and then a positive public referendum.)

We know there will be discussion and debate. We just think it’s time to be talking about this critical issue.

This week, Alabama State Supreme Court Chief Justice Sue Bell announced her resignation effective August 1st, 2011. In her statement, she cited the failure of AL courts to modify their judicial selection system as one of her reasons for leaving. “Alabama appellate court justices should be selected either on merit, and retained or rejected by a vote of all the people, or at least cam­paign without the added po­litical emphasis of party la­bels,” declared Cobb. According to former president of the Alabama State Bar Association, J. Mark White, “She tried every way possible, along with the bar, to get a more civilized and economical way to select our judges.”

The numbers representing campaign costs in Alabama’s partisan elections are astounding. A study conducted by Justice at Stake revealed that AL Supreme Court candidates raised over $40.9 million in the past decade. According to a Thomson Reuters News & Insight article, “Cobb herself received $2.62 million in contributions during the 2006 Alabama Supreme Court election, a multi-candidate election that was the costliest state judicial race ever, with candidates raising a total of $13.5 million, according to Follow the Money.” In her resignation, Cobb explained that this method of judicial selection “perpetuate[s] the perception that judges are selected more on campaign contributions than on ability.”

Calls for judicial selection reform can be heard throughout the country. New York recently changed their recusal standards in an effort to restore public confidence in judicial impartiality. An impassioned editorial beseeches Alabama to do the same: “If anything, Alabamians should question judges’ impartiality even more than people do in other states, and the numbers from national polls already are high. In a Harris Poll last June, 71 percent of those surveyed nationally believe campaign contributions to judges have some or a great deal of influence on their decisions.”

The Justice at Stake survey lists Pennsylvania second after Alabama in campaign contributions, receiving around $21 million. However, recusal rules alone will not solve the problem. PMC agrees with Chief Justice Cobb that judges should not be obligated to raise millions of dollars to earn a seat on the bench and worries about qualified candidates who may be dissuaded by the need to raise enormous amounts of money. Cobb explained, “Another statewide race at this point in time would require me to raise millions of dollars while constantly endeavoring to appear and remain impartial and would require me to sacrifice precious time which I could be spending with my family.”

An editorial in the Youngstown News (Ohio) calls for a meaningful public dialogue about whether to change to Merit Selection.  Citing the recent New Politics of Judicial Elections report, the editorial observes:

The issue of money and the courts is not new. . . .

But the recent U.S. Supreme Court ruling that threw open the floodgates to corporations and labor unions to contribute to political candidates is a game changer.

Can the public be assured the courts will remain fair and independent when money is flowing like water?

The editorial notes that in the past, Merit Selection has not passed in Ohio, but it argues that changed circumstances demand a new look.  Here is the call to action:

There is no doubt that the current money-based system of filling state supreme court seats has fed public cynicism and distrust of the judicial system. It’s time — again — for an intelligent, apolitical, public discussion.

That sounds like a very good prescription for Pennsylvania as well. We hope Pennsylvanians will have the chance to have such a discussion about Merit Selection of appellate court judges.

Today, PMC partners Justice At Stake, the Brennan Center for Justice and the National Institute on Money in State Politics issued a new report analyzing the last decade of judicial elections entitled “The New
Politics of Judicial Elections: 2000-2009.” Pennsylvania is prominently featured in the Report, which examines the explosion in fundraising and spending in these elections as well as the increasing participation of special
interests.

The Report notes that Pennsylvania ranks second in the nation for election spending during the decade.  In addition, Pennsylvania was home to the most expensive Supreme Court election in the nation during the 2007-08
cycle.  In that year, there were two vacancies on the Supreme Court. According to the Report, candidate and third-party spending totaled $10.3 million.  In 2009, as the report notes, the high spending trend continued in Pennsylvania, and we saw the most expensive single seat race in our history.

The Report certainly highlights the increasing importance of cold, hard cash in judicial elections and also reminds us that poll after poll demonstrates that the public — and judges as well — believe that campaign contributions influence judicial decision making.

But there is some cause for optimism.  The Report notes that reform efforts are making progress, and that Merit Selection is gaining ground in states throughout the nation.

The Report presents a cautionary tale — state judicial elections are getting much worse when measured by the factors that affect public confidence: money and special interest participation.  The public wants
fair and impartial courts. Money is widely viewed as a corrupting influence and it undermines the public’s confidence in our courts and judiciary.  There is a clear solution: get money out of the process of
choosing judges. The most effective way to do that is Merit Selection.

Here are the links to the Report:

Full Report

Letter From Justice Sandra Day O’Connor

Executive Summary

State Profiles, 2000-2009

In an op-ed in the Philadelphia Inquirer, Drew F. Cohen argues that Pennsylvania must change the way we pick judges, and he offers an unlikely  model:  Iraq.  Cohen points to the issues that concerned the U.S. State Department when helping to form the Iraqi judiciary: “corruption and nepotism, but also competence and legitimacy – the same issues raised in the debate over judicial elections in Pennsylvania.”

We need not look so far away for a better judicial selection model.  Many states have been using Merit Selection for years to ensure a fair, qualified, impartial judiciary.  But Cohen’s comparison is certainly interesting.  In Iraq the High Judicial Council, an independent body, vets and appoints potential judges.  Once selected, the justices get a one-year probationary period.  If they pass a comprehensive performance review at the end of that year, they can be confirmed until the mandatory retirement age of 63.  Cohen compares this to the Merit Selection legislation pending in Harrisburg:  A 14-member citizens nominating commission would evaluate candidates and recommend the most highly qualified to the governor.  The governor would nominate from this list, and the nominee would be subject to Senate confirmation. If confirmed, the judge would serve a four-year term before standing for retention where Pennsylvanians would vote on whether the judge should serve a ten-year term.

Cohen notes that electing judges — and modern judicial elections in particular — don’t fit with our ideals of what courts and judges should be:

When the Declaration of Independence was signed on Chestnut Street, no state had seriously contemplated popular judicial elections. . . . Modern judicial elections are a far cry from the unbiased, dispassionate races originally envisioned by their supporters. Pennsylvanians are exposed to judicial campaigns replete with vitriolic attack ads, parasitic special-interest groups, and seven-figure fund-raising efforts, tarnishing the robes ultimately donned by the victors.

It seems Iraq has realized the special role judges play in a democracy:  judges must be faithful to the law, not to any particular constituency or campaign supporter. People must be confident that when they come to the courts for justice, the judges will be fair and impartial.
Cohen closes with this call to action:  “With Iraq’s judiciary leaving Pennsylvania’s in the rubble of yesteryear, it’s time for Harrisburg to make merit selection a reality.”

The AP’s report on a speech retired Justice Sandra Day O’Connor gave Monday at Seattle University Law School opens with this eye catcher:

The first woman to serve on the U.S. Supreme Court says there’s a serious problem with the government in Washington and many other states: They elect their judges.

O’Connor spoke at a conference addressing the recent Caperton v. Massey decision, which we have blogged about previously. “‘Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about reelection,’” opined the former Justice.

O’Connor emphasized how the increase in funding for judicial campaigns poses a threat to the neutrality of the bench: “She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country.”

Consider that last point in light of a potentially broad decision in the case currently before the U.S. Supreme Court, Citizens United v. FEC, which could open a vast new source of corporate funds to be spent on state judicial campaigns. The argument for removing judges from the political process will only get stronger as corporate money plays a bigger role in campaign financing.

Over at Caffeinated Politics, there’s some good advice: “Wisconsin Should Listen to Sandra Day O’ Connor.”  We think that’s a good idea for Pennsylvania as well.

An editorial in the Austin American-Statesman minces no words in pointing out a major problem caused by electing judges:

Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .

[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”

How do you do that when you have to raise money. . . to run for judge in Texas?

This is a good question, and it’s one we all should be asking in Pennsylvania.  Of course, the answer to that question raises another pressing question:  if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?

The editorial notes that there is something we can do:

The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.

“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”

And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.

Voters in Pennsylvania can do something, too.  Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business.  We can only amend the constitution if the legislature twice passes the amendment and the public votes for it.  So, there is something we can do.  Let’s do it.

In the wake of the recent Pennsylvania judicial primary elections, the issue of Merit Selection has become a hot topic for Pennsylvania bloggers.  The World According to Tony Polombo offers an interesting assessment on some of the problems with judicial elections, focusing particularly on the lack of relevant information available to voters about the candidates:

For most of us, the only way we could tell for sure that there was an election were the countless number of candidates’ signs up and down the road for judges — most of whom we have never even heard of let alone know whether they would make good judges.

Polombo goes on to raise the problem of the role of money in judicial elections, and then suggests Merit Selection as a possible reform.  He notes that electing public officials is important, but argues that elections where voters don’t know enough to make informed decisions are akin to “elections” with only one candidate or where the names of candidates are covered up.

Of course, there’s also the issue that judges are different from other other public officials and are supposed to make decisions without regard to personal opinions, political party pressure, popular will or the views of campaign contributors.  To us, that’s a major reason that electing judges just doesn’t make sense.

Polombo concludes:

The question is not whether merit selection is perfect (it’s not). It’s whether it is an improvement over the system used by a minority of states who still have partisan elections for judges. Here in Pennsylvania, a number of groups, individual politicians, and newspaper editorial boards are supporters of merit selection for judges. The present system we have of electing judges has become a joke. Isn’t it time we all finally give this idea some serious consideration?

Thanks, Tony, for raising the question.  We certainly think it’s time Pennsylvanians gave some serious thought to changing how we select appellate court judges.

David Yonki blogging at the Lu Lac Political Letter also gives some post-election thought to Merit Selection for the appellate courts:

Statewide. . .  I think it should be considered. We don’t know candidates from Western Pennsylvania or even from one of our neighboring counties. But if a candidate has a gender and geographic base, they’ll win.

We are pleased to see Pennsylvanians questioning the current system and calling for some meaningful discussion about reform.  We think it’s time to let Pennsylvanians decide whether to change how to select appellate court judges.  Let the dialogue continue!