judgesonmerit.org

An editorial in today’s Philadelphia Inquirer offers a positive review of the introduction of Merit Selection legislation in the General Assembly. The editorial cites the 2010 Poll that found that 93% of the Pennsylvanians surveyed want the opportunity to vote on whether to change how we choose appellate judges.  The editorial quotes PMC: “voters unquestionably deserve ‘the chance to make their voices heard.’”

The editorial closes with a prediction of what Merit Selection would achieve for Pa:

Other states’ experience leaves no doubt that an appointed appellate bench would mean judges are more likely to be selected on the basis of qualifications and their ability to be fair and impartial.

Citizens, as a result, would have a greater assurance that justice was not being auctioned to the highest bidder.

We certainly agree that Merit Selection offers a better way of choosing appellate court judges.

Accompanying the article is a Philly.com SayWhat? Poll that describes the Merit Selection proposal and asks readers to vote on whether it’s Time to Appoint PA’s Top Judges.  There are four possible votes: two answer yes and describe benefits of Merit Selection, including that it produces a qualified and diverse judiciary and that it takes money out of the system of selecting judges. Please pick your reason and Vote Yes today.

In an op-ed in the Philadelphia Inquirer, Matthew Zencey, former editorial page editor of the Anchorage Daily News and first-time Pennsylvania voter, expresss big concerns about our judicial elections system:

I’m not too keen on electing judges. Before heading to vote, I looked up who the bar association said was qualified, but that was about all I knew before making my decision.

He contrasts the election system to Alaska’s Merit Selection system. He finds the Alaska system has worked well, avoiding judicial scandals while allowing voters the opportunity to decide through retention elections whether certain judges should remain on the bench.

Zencey also points out some other problems inherent in electing judges:

Even if you don’t have corrupt pols getting onto the bench, filling the judicial branch with elected judges is risky. They have to cater to a party organization, then raise lots of money from lawyers and companies whose cases they’ll be handling, before finally pandering to the people who elect them. Like the Founders, I’d prefer a judiciary that’s more insulated from the corruption of politics and the passions of the masses.

Wow, it only took Zencey one election to figure out that Pennsylvania’s system of electing judges makes no sense.  Hopefully, the legislature will let Pennsylvanians make this call for themselves by putting the issue of how we choose judges on the ballot for the people to decide.

So, it’s the morning after.  As expected, very low voter turnout yesterday.  In the appellate court races, the Republican endorsed candidates won handily.  The Democrat for Superior Court was running unopposed. But the Democratic contest for Commonwealth Court is not yet determined, and it’ s possible that the unendorsed candidate who received a “not recommended” rating from the Pennsylvania Bar Association could be on the ballot in November.

In Philadelphia, ballot position and party endorsement were important factors in determining who won the very crowded races for Common Pleas Court.

So, what’s all this mean? That elections still aren’t designed to get the most qualified, fair and impartial judges on the bench.  Instead, elections generally reward luck (ballot position), political connections (party endorsement), and fundraising prowess.  Why should Pennsylvania be relying on such a system to pick officials whose job is to be fair, impartial, unbiased judges accountable to the law?

PMC representatives spent election day encouraging Pennsylvanians to vote while also pointing out the problems inherent in electing judges.  PMC’s Executive Director Lynn A. Marks spoke on PCN’s Call-In Show about how judges are different from other public officials and should therefore be selected in a different way.  Deputy Director Shira Goodman spoke about the issue and why electing judges doesn’t make sense on WHYY and WILK FM.

In addition, our letter in the Times-Leader argues: “The best way to solve the “money problem” is to get judges out of the fundraising business by ending the practice of electing judges.”

Our comments about the elections and how random factors have too great a role in deciding who gets on the bench can be found in the Philadelphia Inquirer and Daily News.  Most telling is an interview with Marks following her own trip to the voting booth:

‘I voted this morning. . . .I’m a politically active lawyer, and I didn’t know most of the people running. . . .’

‘It’s a crazy system to have people running very political campaigns for a job that’s supposed to be non-political and non-partisan.’

So, here at JudgesOnMerit, we’re doing our “Monday Morning Quarterbacking” and once again asking why we continue to elect judges this way.  We think it’s time for Pennsylvanians to get the opportunity to decide whether there is a better way to pick judges. We hope they will get that chance.

Recently, an AP article looked at various positions at stake in Tuesday’s primary election, making note of difference in candidates, issues, endorsements, and money that has been raised. Sadly, political issues are playing an ever growing role in judicial elections. An article in the Philadelphia Inquirer explains that this is due in part to a 2002 U.S. Supreme Court decision that relaxed restrictions on what judicial candidates can talk about.

The change in these restrictions is apparent from judicial candidate Paul Panepinto’s campaign website, which announces that he is Roman Catholic and “pro life.” Panepinto, currently a Philadelphia Common Pleas judge, is running for an open seat on the Commonwealth Court. PMC’s executive director Lynn Marks explains that the statement “does not cross the line of what a candidate can and can’t do, but it does send a message.”

Issue voting is a problem in judicial elections because it makes our choice in judges too similar to how we choose politicians. The judiciary is different from the other branches of government, and the way we choose judges should likewise be different. Pennsylvania deserves a fair and impartial judiciary with judges selected based on their qualifications and experience. Judicial elections allow money and politics to play too great a role in the process. It’s time to get judges out of the business of campaigning, and Merit Selection is the best way to accomplish that.

A letter to the editor appeared in the Philadelphia Inquirer over the weekend urging that: “There’s a better way to choose judges.” In his letter, John R. Attanasio of Philadelphia describes some of the problems with judicial elections, and refers to Pennsylvania’s elections as “a closed door, backroom process dressed up to look like democracy.” The letter focuses on the role of political parties and the lack of information available to voters. Although the letter does not mention it, there is also the big problem of money in elections. Lawyers make up the majority of campaign contributors. This creates at least the appearance of impropriety when lawyers appear before judges to whom they have made donations.

 Attanasio closes his letter by asking: “Is this the best we can do? Let’s switch to merit selection of judges in Pennsylvania.”

We agree that it is time for Pennsylvania to move to merit selection. Merit Selection focuses on candidates’ qualifications to serve on the bench, opens up the opportunity for qualified candidates of all backgrounds and from across the Commonwealth to apply for judicial vacancies, and gets money out of the process. Simply put, Merit Selection is a better way to select judges.

The Philadelphia Inquirer and the Daily News report that ballot positions have been selected for upcoming Philadelphia elections. The races affected by the drawing of positions include city council, city commission, register of wills, sheriff, Traffic Court judge, Municipal Court judge, and Common Pleas Court judge. Ballot positions were chosen by picking numbered bingo balls out of a coffee can, and “the drawing had the feel of a circus joined to a lottery.” Although there is clearly more involved in running a campaign than ballot position, it is telling that one candidate referred to the day as “one of the most important days in the election.” Another candidate, after receiving first position on the ballot, “literally danced out of the courtroom, saying in a sing-song voice ‘Hallelujah, thank you Jesus. Do the right thing and vote for Bloom in the spring.’”

In judicial elections ballot positioning is even more important because the candidates are often less well known and voters have less information to base their choice on. In addition, judicial races are lower on the ballot.

Citizens’ Voice announces that the Department of State in Harrisburg held a lottery to determine ballot positions for candidates running for Luzerne County judge. Political science professor Thomas Baldino said that ballot position is important, with candidates on the top preferred to those on the bottom. He went on to explain that in races with numerous candidates, positioning becomes more important due to “voter fatigue.” Although Pennsylvania’s proposed merit selection process only affects the appellate courts, we believe that increased public education and awareness are crucial in these judicial elections.

The position of judge is too important to be decided in part by the drawing of a numbered bingo ball.

The Philadelphia Inquirer reports that with two Bucks County women endorsed as candidates for the open Commonwealth Court seat, voters will have to consider more than geography and gender when casting their votes. Republicans have endorsed Bucks County lawyer Anne Covey, and Democrats have endorsed Bucks County lawyer Kathryn Boockvar.

Unless a non-endorsed candidate stages an upset in the primary, the election will result in a 5-4 majority on the Commonwealth Court. This represents a trend of women being increasingly present on the appellate courts. Lynn Marks, PMC’s executive director, explains that: “Women used to be so underrepresented in the legal community that most of the judicial candidates tended to be male. Now with more women coming up through the ranks we are seeing more women on the appellate courts.” The article explains that with geography and gender taken out of the equation, voters might need to do more research on candidates. However, it also acknowledges the possibility that voters will simply rely more heavily on party recommendations.

Increasing the numbers of female judges is a good step for the judiciary, but the improvement is not confined to courts that use judicial elections. In fact, merit selection also increases the numbers of women on the courts. Merit selection achieves these increases through careful consideration of candidates and their histories and credentials. This article demonstrates the danger presented by judicial elections of identifying judicial candidates by easily defined parameters – such as gender, location of residence, and political affiliation – rather than their individual qualifications for the position. The Inquirer article even acknowledges that voters might prefer to cast their ballot based on gender or geography, but in this situation they are prevented from doing so based on the similarity of the candidates. The article seems to have trouble distinguishing the two women, except for their different party affiliations.

Women belong on the bench when they are experienced and qualified members of the legal community. Merit selection provides the best means of evaluating judicial candidates based on the whole picture of their qualifications. Under such a system, more women are chosen as judges because of their credentials.

In an op-ed in today’s Philadelphia Inquirer, PMC’s Lynn Marks and Shira Goodman argue that in the wake of the Luzerne County scandal, there remains a fundamental question for Pennsylvania to answer:

What does it mean to be a judge?The answer should be simple: A judge is a public servant sworn to render judgment in legal cases without regard to self-interest, personal bias, public opinion, or political pressure.

Lately, this fundamental proposition has been overshadowed. But we must demand that it be followed by all Pennsylvania justices and judges, and any judicial behavior falling short of it must not be tolerated.

Marks and Goodman argue that distinctions between what is criminal and what is unethical hold little meaning when it comes to judges, because unethical judicial behavior has the potential to be as harmful as criminal behavior.  They further explain that something has been missing in the aftermath of the scandal, something that may seem obvious, but that needs saying:

There should be an unequivocal official statement that what the former judges did was an example of judicial misconduct of the highest order. It should be made clear to all Pennsylvanians that these men violated almost every rule governing the behavior of the state’s judges.

The authors follow this with a list of ethical constraints on judicial behavior in an effort to restate some basic truths about what Pennsylvanians should be able to expect of their judges.  The op-ed closes with a strong statement about the judicial role:

At its core, kids-for-cash was about judges ignoring who they worked for: the people. These judges abused the power with which the public entrusted them, using it to enrich themselves and their friends.

This is the polar opposite of what it means to be a judge. It must never be allowed to happen again.

We didn’t need any more evidence that the role of money in judicial elections is a big problem.  Surveys consistently show that at least 75% of people believe that campaign contributions affect judicial decision-making in the courtroom.  Those numbers are likely to rise because, as the Philadelphia Inquirer reports, yesterday’s cross examination of former Luzerne County President Judge Mark Ciavarella provided even more damning proof of the problem.

Ciavarella admitted that he kept for his personal use thousands of dollars in cash that had been contributed to his retention election campaign.  This was illegal, as campaign funds may not be appropriated for personal use.  The admission of this further illegal conduct was made in an attempt to demonstrate that he had other sources of cash aside from the alleged kickbacks he took in exchange for sentencing juveniles to serve time in private detention facilities.  Whether that will convince the jury remains to be seen.

But it demonstrates the dangers inherent in the expensive judicial electoral system.  It is almost unthinkable that a sitting judge would keep cash – likely donated by attorneys and others who frequently appeared in the judge’s courtroom – for his personal use.  Still more inconceivable, this violation was not disovered by the authorities – this was an admission freely made as part of his defense to even more serious charges.  How can this be?

Self-policing is not enough; campaign finance rules are tougher for judicial campaigns.  For example, judges are not permitted to personally solicit campaign contributions. But if the rules aren’t enforced, there’s no point to having them.

Many judges claim that in strict compliance with the spirit of the rules, they don’t even read the lists of donors and are unaware of who contributed to their campaign and in what amount. How is the public to believe this, especially in the face of evidence that a judge was able to keep and use campaign cash donations? And once this fallacy is removed, how is an already very skeptical public to believe that campaign contributions really have no impact on judicial decision-making?

There is a simple solution. Get judges out of the fundraising business and get money out of the process for selecting judges. Merit Selection is the answer.

A short piece in the Philadelphia Inquirer asks what the “price of admission” will be for this year’s local judicial elections.  The cost in question is the contribution required to secure the endorsement of the Democratic City Committee.  This single question sums up the major problems with judicial elections: they emphasize fundraising and political prowess over qualifications to serve. This is not unique to Philadelphia (though the political contribution requirement may be more upfront here).  Lawyers seeking to serve as judges must make nice to the political committees –county and statewide — to earn the coveted party nomination — a key step to winning the primary election.

There should be no “price of admission.”  Qualified lawyers with reputations for fairness, honesty, and ethical behavior should be able to aspire to serve as judges, without regard to their fundraising abilities or political connections.  This is what Merit Selection would achieve for the appellate courts.