judgesonmerit.org

In the wake of Thursday’s House Judiciary Committee hearings on Merit Selection for the appellate courts, the Philadelphia Inquirer and Philadelphia Daily News have each published editorials calling for Merit Selection.

Following a recap of the hearing and a brief discourse on local and state-wide judges whose conduct has been the subject of news reports and disciplinary action, the Daily News concludes:

Fixing this broken system will take time, since it would require legislation and a constitutional amendment, which itself requires a referendum.

Still, this has been an idea already debated for years. How many poster children for tainted justice do we need before we get action? That action can start with letting your state lawmaker know it’s time to get campaign money out of the courts.

The Inquirer opines that the proposed legislation would address the “twin problems with the state’s system of electing all of its judges: the corrupting influence of campaigns and fund-raising, and whether voters are adequately equipped to choose qualified candidates for the bench.”

As PMC and PMCAction pointed out during the hearing, passing the legislation will not change the way we select judges. Instead, it puts the issue to the people: changing the constitution requires a public referendum. The legislature can give the people this opportunity by passing the legislation in two successive sessions. We believe it’s time to let the people decide whether there is a better way to select our appellate court judges.

Yesterday’s call by Governor Rendell for the legislature to pass the pending Merit Selection bills has got Pennsylvania talking.  An editorial in the Philadelphia Daily News shares the Governor’s sense of urgency to pass the legislation and argues: “Imagine if judges didn’t have to rely on the kindness of ward leaders, or the luck of ballot position.”

In addition, the Philadelphia Inquirer has a full report on the news conference and quotes the Governor’s exclamation that there is “no excuse for not moving the legislation this year and putting the question on the ballot by late 2011.” The Inquirer also quoted PMC Executive Director Lynn Marks who explained that Merit Selection is designed to get the most qualified, fair and independent people on the appellate courts.

The Pittsburgh Post-Gazette notes that the Governor is seeking to give a jumpstart to the Merit Selection legislation.  The article quotes local State Senator Jim Ferlo on the need for reform: “The impact of the electoral system on the impartiality of judges puts the fairness of our courts in question, and now requires judicial candidates … to raise millions of dollars to run their campaigns.”

Additional coverage of the Governor’s press conference and the call for action can be found at WHYY 91 FM, the Citizens’ Voice, the Times Leader, the Patriot-News, and Gavel Grab.

In a letter to the Philadelphia Daily News today, bar association chancellor Scott F. Cooper emphasized the importance of changing the way we select appellate court judges. Writing in support of last week’s editorial on Merit Selection, Chancellor Cooper emphasized the unavoidable problem of money in judicial elections:

The judicial system in Pennsylvania operates in spite of the elections that require candidates to collect millions in campaign contributions. Justice simply can’t be served when citizens question the ability of judges to be impartial when their donors appear before them. In a country based on rule of law, the courts must not only be immune to financial influences, the public must see them that way.

Cooper noted that Merit Selection carries the endorsement of the Bar Association, as well as that of Governor Rendell and numerous watchdog groups, including PMC. Public support is crucial to enacting reform. A switch to Merit Selection will require a public vote to amend the state constitution. Cooper argued that citizens should have the opportunity to speak out on the matter:

Pennsylvanians deserve the chance to lend their voice to this important debate. They should be allowed to decide on this constitutional change. And the time for that is now.

Well put Chancellor Cooper.

An editorial in today’s Philadelphia Daily News urges that Merit Selection is a much needed reform.  Discussing the very expensive 2009 Supreme Court elections and the Luzerne County Courthouse scandal,  the Daily News writes:

Welcome to the darker side of the Pennsylvania judiciary, a side that will continue to stay dark as long as we elect judges. . . .

The editorial discusses the danger of fundraising in judicial campaigns, the too important role of the political parties in determining who reaches the bench, and the lack of relevant information for voters trying to decide who should be a judge.

The editorial closes with a shout-out to PMC:

The need for reform is clear. The advocacy group Pennsylvanians for Modern Courts has been a steady voice calling for merit selection through a constitutional amendment.

Dave Davies of the Philadelphia Daily News wrote yesterday in response to Pennsylvanians for Modern Courts’ press release on the huge amount of money spent by the candidates and third-parties on this year’s PA Supreme Court race. Data from the current year is still incomplete, yet PMC reports that at least $4.5 million has already been spent.

In recent years, Pennsylvania has been leading the nation in money spent on judicial elections. These extreme figures highlight the need to switch to a merit-based selection process. PMC’s Lynn Marks told Davies of the inherent dangers of judicial election fundraising:

These candidates have to raise enormous amounts of money, and it comes from groups that are often in state court – lawyers, businesses, unions and political committees, and also the state political parties. If you think of yourself in court, you don’t want to be sitting there wondering whether your opponent, or your opponent’s attorney, made a large contribution to the judge.”

A procedural switch from elections to merit selection requires a change in the state constitution. There is current legislation pending in both the House and Senate to achieve such an amendment.

Hopefully the data from the 2009 Supreme Court race will make both voters and their representatives take note and reconsider our current system of choosing judges. Justice is not a commodity. No one should ever worry that it might be for sale.

Like night follows day, scandals in Harrisburg are followed by cries for reform. This time, though, cries are coming from an unusual place: the governor’s office.

So begins an op-ed published in today’s Daily News. The piece recaps the Governor’s call for reform, which includes a change to merit selection of judges. What’s perhaps unusual about this opinion is its optimism. The editors acknowledge the public’s typical reaction to calls for reform, apathy, especially from a governor in his last year in office, but points out why this time things may be different:

[T]hese are not normal times. . . . In the past two years, more than two dozen people from both parties have been charged with fraud and corruption. That includes five current or former elected officials, three of whom held important leadership positions within the Legislature. Those allegations come on the heels [of] the 2005 pay-raise scandal, when lawmakers voted for an increase in the middle of the night. Public outrage forced them to repeal the move.

And how can we forget one other taint on our leaders: what’s been called by our newest Justice-elect the “worst judicial misconduct in U.S. history.” It is no coincidence that the Governor announced his platform in the beleaguered Luzerne County.

So what will stop change this time around?

All of these changes threaten the status quo. The problem is, they also require action from the Legislature, whose members like their quo to remain static. But this is a time when public push-back could make a big difference. Outraged citizens should call their state lawmakers’ office, and tell them that unless they want a repeat of the blood that followed the pay-raise scandal, they ought to pay attention.

In other words, if we the public remain apathetic, we can expect business as usual. But if we raise our voices and let our leaders in Harrisburg hear that we will accept nothing but systemic change for meaningful reform, perhaps this time will be different.

In an editorial in today’s Philadelphia Daily News, PMC offers this review of the 2009 judicial elections:

Once again, judicial elections have left a bad taste in the mouth of Pennsylvania voters. It’s as if we all watched from the sidelines as some celebrities threw an expensive party, got into a fistfight and traded barbs in the tabloids the morning after. We were entertained for a few minutes and then wondered what it all had to with us.

This conclusion follows from what became a hard-fought election with candidates “going negative” in their advertising and arguing about the impact of campaign contributions.  Record sums were raised and spent, both by the candidates and third-parties, including the political parties and special interest political action committees.

It was enough to turn voters off, and it did: “There was a lot of noise leading up to Election Day, but voter turnout was a record low. In Philadelphia, it was appalling – less than 12 percent of registered voters.”

As the op-ed argues, this is a big problem, because  “choosing judges IS important, and their decisions DO affect our lives. Selecting judges deserves a process worthy of the importance of the decision.”  The solution: Merit Selection for the appellate courts.

In today’s Philadelphia Daily News column, John Baer reviews the judicial election results and scratches his head about how we select our judges.

So, did people vote yesterday? According to Baer, “The low-profile court contests appeared to draw lower than normal court-race turnout; some experts projected a statewide figure below 20 percent.”  That’s certainly not a show of confidence in the judicial election process.

As Baer notes, Republican candidates did very well, winning at least six of seven appellate court seats. Baer goes on to note the continuing success of women from the Western part of the state.  As of this writing, women are poised to win at least five out of seven seats on the appellate courts, and a woman is in a close race for a sixth seat.

Baer wraps up the column with this important thought: “But the way we put judges on the bench? Who knows what kind of day it was for justice?”  Baer is not alone in worrying that the judicial election system — which seems driven by ballot position, party affiliation, gender and geography — is not the right way to select appellate court judges.  We just hope the people of Pennsylvania are now ready to start talking about a better way.

John Baer of the Philadelphia Daily News argued in his column earlier this week that: “THE NASTY RACE for state Supreme Court is making yet another strong case for not electing statewide judges.” Baer notes that the recent dispute between Supreme Court candidates Jack Panella and Joan Orie Melvin over campaign contributions and their current tv ad war (we posted about these ads yesterday) is strong evidence that the way we select judges needs to change.

First Baer picks apart a Panella ad claiming that Melvin is dangerous for women, especially when it comes to their healthcare decisions:

[W]hen I ask, I’m referred to a May Superior Court case involving consensual sex between a physician and a female patient with psychological problems who says she got worse thereafter.

The court ruled in the woman’s favor, suggesting she might well have a case of medical malpractice. Orie Melvin dissented.

Sounds bad. But the dissent was based on interpretation of law as applied in similar cases and suggested that while the (general practitioner) doc’s acts were “unethical,” they don’t constitute medical malpractice. A woman, former Judge Maureen Lally-Green, wrote the dissent and Orie Melvin joined it.

Seems a stretch that disagreeing on points of law in a case of consensual whoopee endangers women’s rights and safety.

Then Baer turns to the Orie Melvin ad that claims Panella is dangerous for children because he served on the Judicial Conduct Board when a complaint related to the Luzerne County scandal was filed:

[Orie Melvin's ad] all but paints [Panella] as personally shackling, imprisoning and feeding gruel to the victims. “Jack Panella could have stopped the abuses,” her ad says.

It’s just that the Associated Press last month quoted the U.S. attorney prosecuting the case as saying the board acted properly in ’06, quickly forwarding an anonymous complaint. And yesterday, Panella’s campaign released a letter from five former board members saying the same thing. Seems a stretch to lay the collapse of a county system at the feet of a single state judge.

Finally, Baer mocks Orie Melvin’s claims of being a reformer: “Orie Melvin insist[s]“I’m no insider” (which is like Bret Favre saying he’s a rookie since he’s on a new team).”

Baer shifts responsibility back to we the people to do something about all this: “Ask yourself if there just might be a better way to pick the people who sit on our highest court.”

Good question, John.  If voters are honest with themselves, they know the answer is yes. Elections aren’t working; it’s time for Merit Selection.

While the judicial reform bills currently before the state legislature would replace elections with Merit Selection only for appellate-level judges, the upcoming local judicial elections — especially for Court of Common Pleas vacancies in Allegheny County and Philadelphia — demonstrate the political party gamesmanship that can define judicial elections and determine who reaches the bench.

In Pennsylvania, where elections are partisan, judicial candidates are listed by party affiliation.  This creates a risk that votes will go to a candidate based on party affiliation rather than on qualifications. In Allegheny County, according to the Pittsburgh Post-Gazette,  it is “commonly accepted that candidates generally need to be on the Democratic ticket to win.”  This is also true in Philadelphia County.  Candidates for the local courts can cross-file, that is, run on both the Republican and Democratic party tickets.

The Post-Gazette explains that two candidates who lost in the Democratic primary in May, but won spots on the Republican Party ticket, have decided to keep their names on the Republican ticket and simply not campaign.  This maneuver prevents the Republican Party from naming replacements for the two, and by not campaigning, the candidates virtually guarantee that the five who won in the Democratic primary will be elected onto the bench.  In essence, these two candidates are “taking one for the team,” and presumably will have their good sportsmanship remembered by the Democratic party in future elections.

Something similar happened in Philadelphia earlier this year.  As the Daily News reported:

[A]t an Aug. 25 party meeting, Republican leaders announced the withdrawal of the six judicial candidates on their ballot who had failed to also win the Democratic primary. And, they said, the GOP had decided to replace them on the Republican ballot with Democratic candidates who hadn’t won the Republican primary.

In other words, the Democratic team is now on both ballots and assured of victory.

So, here, too, political party maneuvering will determine who reaches the bench.  And this seems to be an example of the two competing parties actually working together — so much for partisan choice.

People who support the judicial election system often speak about the benefits of the democratic processes and letting the people choose.  But when political parties make ballot changes and have place holders on the ballot, do the voters really have a choice?  Aren’t the choices being made before anyone gets to the voting booth?

Is this really how we want to select judges?  Pennsylvania can do better than that.  While Merit Selection would not completely remove politics from the process (and may we be so bold as to posit that no system outside a dictatorship could), it would make a big improvement.