judgesonmerit.org

The recent events in Wisconsin have brought to a head growing concerns about the independence and integrity of the Wisconsin judiciary. The latest proponent of change? Chief Justice Shirley Abrahamson. According to a Wisconsin State Journal editorial, Abrahamson “indicated in a memo to her colleagues this week that she wants her Wisconsin Supreme Court to be more transparent.” And even more significant for Wisconsin citizens and fair courts advocates, she also “indicated a willingness to discuss whether high court justices should continue to be elected.”

The editorial refers to many of the growing problems of the Wisconsin Supreme Court—from “vicious and money-soaked” judicial campaigns to “partisan squabbles” to actual “physical altercations.” Like political cartoonist Phil Hands, the editorialist sees the comedy of the situation. “It sounds more like a ‘Three Stooges’ episode than the highest court in Wisconsin carefully and dispassionately deciding sensitive and complicated legal disputes.”

However, as those watching the events in Wisconsin unfold would agree, public distrust in the courts is never funny. “Wisconsin’s wild and bruising judicial elections soil even the reputations of the winning candidates.” The article laments, “These ugly judicial elections, driven by shadowy special interest groups with lots at stake in future court decisions, are a huge contributor to our high court’s embarrassing dysfunction.”

PMC shares the concerns expressed by this editorial regarding the danger of partisan politics and excessive campaign spending. Like the editorialist, we, too, hope that Abrahamson’s “memo this week indicates renewed interest in merit selection — a big reform that’s badly needed to restore trust in high court decisions.”

The Rome News-Tribune reports that two members of the Georgia Court of Appeals, Judges Stephen Louis A. Dillard and Judge Keith R. Blackwell, will be running for election in 2012. Both judges were appointed by former Governor Sonny Perdue last November. However, the judges clarify that the political party of their appointing governor does not define them as judges. Dillard says, ““The reality is we’re not Republican judges. We’re not Democratic judges. We’re just judges.” Blackwell agrees that partisan affiliations should not, and do not, affect how a judge decides a case. “I can tell you uniformly on our court I am confident that there is not one of the 12 judges who would look at a case and ask how would the Democrats like this case to come out or how would the Republicans like this case to come out in deciding the case,” says Blackwell.

Unlike Pennsylvania, which selects all judges through partisan elections, Georgia selects its judges through nonpartisan elections. While taking the party label off the judicial ballot might help, candidates may still be labeled as “Republican” or “Democrat” by the public, because the public is accustomed to an election system based on party politics. Elections are simply not the appropriate vehicle for judicial selection if we want judges chosen based on ability and not on other factors that have no bearing on how a judge will do his/her job, factors like party affiliation, county of residence, and ballot position. As Dillard says, “Ultimately as a judge your job is a very simple one, it’s not always easy, but it’s to interpret the law. That’s your role.”

In a recent Montgomery Advertiser editorial, Retired U.S. Magistrate Judge Vanzetta Penn McPherson advocates a transition from judicial elections to Merit Selection of judges. Her critique of judicial elections follows the resignation of Alabama Chief Justice Sue Bell Cobb. McPherson seconds Cobb’s concern that partisan elections of judges “perpetuate the public perception that judges are selected more on campaign contributions than on ability.”

McPherson distinguishes the role of judges from governors and legislators. “The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.” In direct contrast, judges should rule objectively, without concern for party politics or personal ideologies, says McPherson. “It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.”

McPherson faults judicial elections beyond the involvement of money and politics. Rather, she identifies the crux of the problem to be the lack of emphasis on judicial qualifications. McPherson describes the intellectual challenges of serving on the bench and the need for judges with significant experience, strong academic achievement, effective management skills, and reasonable temperance. According to McPherson, Alabama’s codified qualifications fail to measure up. And before 2009, she says judicial campaigns were “more likely to highlight a candidate’s religious faith, church attendance and political ideology than the candidate’s abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.”

McPherson believes Merit Selection is “in the public’s best interest,” because it prioritizes a judge’s qualifications and temperament. We support her fight to change Alabama’s system of judicial selection and urge Pennsylvania to heed her call.

A Times-Tribune editorial asserts that although merit selection is the best way to select judges, strict disclosure requirements and clear recusal rules are necessary in the meantime. The author remembers the state Supreme Court race of 2009 in which politics played a central role. During the campaign, there was much concern that Democratic or Republican success in legislative redistricting depended upon the political party of the elected judge. “After such partisan wrangling during campaigns, the public is expected to believe that the judges who emerge from it are not affected by it.” The article predicts that these issues will come up again later this year if the Supreme Court rules on legislative redistricting. Furthermore, with the influx of special interest money, the independence of the judiciary – or at the very least public confidence in that independence – is threatened. “Until Pennsylvania finally gets around to merit selection, it should mandate comprehensive disclosure as the second-best option.” We agree.

In Miamisburg, Ohio, the race to replace retiring municipal Judge Robert Messham is getting ugly. Partisan bickering and accusations of misconduct are making headlines. The twist? The candidates are both on the same side, at least politically. Candidates Robert Rettich and John Kolberg are locked in an increasingly messy squabble over the Republican nomination. The Dayton Daily News explains the situation:

Kolberg, who has served as magistrate at the court for 19 years and as an acting judge since 2002, was recommended over Rettich by the Montgomery County Republican Party Screening Committee in January.

But on April 14, the precinct captains in the court’s jurisdiction voted 23-4 to endorse Rettich.

Former Miami Twp. Trustee Dave Coffey, who is helping Kolberg’s campaign, said the April meeting was an “ambush.” Instead of focusing on judicial qualifications, Rettich supporters questioned Kolberg’s legitimacy as a Republican, Coffey said.

In addition to the political infighting, there are allegations that a Rettich supporter tried to get the retiring judge to convince Kolberg to withdraw, by threatening the jobs of current court employees.

Messham told the Dayton Daily News that Miami Twp. Trustee Deborah Preston told him April 16 that if Kolberg did not withdraw from the race, Rettich would fire all current court employees once he is elected.

Preston also told Messham that, if he brokered the deal to get Kolberg out of the race, he would be allowed to serve as a visiting judge at the Miamisburg court after he retires, Messham said.

Messharm said Preston never mentioned Rettich’s name, but said, “Bob, I’m only the messenger.”

Why is the endorsement of the County Republican Party causing such a scrap? Because of cold political reality; without a party endorsement, most judicial candidates in partisan races have a vanishingly small chance of reaching the bench. Endorsed candidates have a huge advantage in a party primary. If a candidate who fails to win a primary even has the option to run as an independent, he or she will be facing opponents who have the benefit of their parties’ assistance with campaigning and raising funds.

In a partisan judicial election, the endorsement of a party is invaluable. Party politics become more important than the experience and ability of the candidates. Qualified judges can reach the bench only if they’re also sufficiently skilled politicians. They must navigate the often contentious currents of party endorsements, and the often confusing ethical rules that try to balance the need for political campaigning against their impartiality on issues they might rule on once they’re elected.

We believe that Pennsylvanians deserve a system that gets appellate judges out of the business of raising funds and campaigning for votes. We think that skilled judges should be able to reach the Pennsylvania appellate bench on the strength of their experience, their ability, and their knowledge of the law, not their skill at winning political points. That’s why we support the switch to Merit Selection of appellate judges in Pennsylvania.

As we make our case for reforming the way Pennsylvania selects its appellate judges, we’ve consistently tried to explain the things that (should) make judges different from politicians. Legislative and executive positions are political by design. Holders of those offices are elected in partisan contests, running on a political platform, with clearly defined goals in mind once they win. They win votes because of the actions they promise to take once in office, and are accountable for those promises when running for re-election.

Judges, by contrast, are supposed to be impartial. They’re supposed to approach each case without prejudice, to make decisions based on the law and the facts at hand, rather than political ideology, or even the will of the majority. The law seeks to protect the rights of parties, even if the majority would prefer otherwise. In those cases, judges should be able to make the unpopular decisions, without having to worry about their jobs.

Unfortunately, judges in many states have to be successful at the polls before they can even reach the bench. An article from the magazine Campaigns and Elections shows that the strategists who help politicians raise money and stump for votes have definitely started to pay attention.

Joseph Cozzolino, president of Judicial Campaign Consultants, says that the contentious judicial election in Wisconsin is of a piece with a trend he has noticed, even in non-partisan elections, toward increased participation by outside partisan groups. Indeed, he routinely advises judicial candidates to position themselves as a partisan candidate would in any other election by brushing up on the issues driving the political debate and emphasizing their personal background rather than professional history in biographical spots.

“Very often in judicial races, people try to portray themselves as a skilled lawyer, but people are not always doing an analysis of your lawyering background so much as looking at the same issues that you would for non-judicial races,” says Cozzolino. “You’ve got to come across as aware and sensitive, even in judicial races.”

You’d be hard-pressed to find a tidier summation of why electing  judges is antithetical to the ideal of an impartial and unbiased judiciary. Political skills and campaign fundraising ability are what gets politicians elected. How is the public supposed to believe that elected judges can simply put all those considerations aside once they’ve been sworn in?

The races to fill appellate court seats are becoming increasingly partisan, marked by outrageous advertising and huge increases in campaign spending. The result is a judiciary that’s tainted with the perception of bias. The decisions of even the  most impartial judge are measured against campaign rhetoric and lists of donors, and the public’s faith in the fairness of the courts continues to erode.

If we want to restore public confidence in Pennsylvania’s appellate judges, we need to keep them from having to be politicians in the first place;  get them out of the fundraising game, and let them reach the bench on the basis of their ability and experience. We think it’s a better way to select appellate judges, and that’s why we’re working to bring Merit Selection to Pennsylvania’s appellate courts.

In the most recent edition of the Duquesne Law Review, Pennsylvanians For Modern Courts makes the case that partisan election of judges “creates special challenges to the ability of judges to achieve and maintain judicial independence.” Deputy Director Shira J. Goodman, Executive Director Lynn A. Marks, and pro bono attorney David Caroline collaborated on the article, titled “What’s More Important: Choosing Judges or Judicial Independence?” Citing academic research and public opinion polls, they argue that campaign contributions and political partisanship make it almost impossible for elected judges to serve without fearing accusations of bias. And recent loosening of campaign finance regulations will only exacerbate the problem in the future.

Readers with access to HeinOnline can read the complete article using the citation 48 Duq. L. Rev. 859.

The Supreme Court of Illinois recently ruled that former White House Chief of Staff Rahm Emanuel satisfied the somewhat unclear residency requirements for inclusion on the ballot in the race for Mayor of Chicago. In covering the court’s deliberations on the question, the Chicago Tribune points out the inherent contradiction of an impartial judiciary that’s selected by partisan voting:

The Illinois Supreme Court justices deliberating the fate of Rahm Emanuel‘s bid for Chicago mayor are sworn to uphold the state constitution without regard for special interests, yet that same document requires them to run for election in an inherently political system.

While much of the high court’s work is done in relative anonymity, the pedigrees of the justices are fodder for debate whenever they tackle high-profile cases with political consequences — from deciding a close governor’s race to ruling on the district maps that determine which party will control the Legislature. (emphasis added)

The appellate courts in Pennsylvania are burdened with the same contradiction. Judges and justices are required to raise money, cultivate political capital, and campaign for votes. But after the election is over, they’re expected to put all of that aside and rule impartially, even on matters involving the political supporters and financial backers that made it possible for them to reach the bench in the first place.

As long as our appellate judges are forced into the business of politics, the taint of possible influence will linger over even their fairest decisions. And otherwise qualified legal minds, lacking the political clout to wage a successful campaign, have little hope of reaching the bench. Merit Selection would enable those judges to achieve their positions based on their qualifications, rather than their political skills and fundraising savvy. That’s why we think it’s a better way for Pennsylvania to choose its appellate judges.

One reason why we advocate for a change in the way Pennsylvania selects its appellate court judges is to relieve some of the political pressure on judges and justices. The duties of judges distinguish them from officials in executive or legislative positions. Politicians are supposed to act on behalf of their constituents, and are expected to weigh the reaction of their party and the voters when deciding how to act. Judges, on the other hand, are supposed to be politically impartial. They are expected to base their rulings on the law, even – perhaps especially – if those rulings are unpopular, either with the voters or with a particular political party.

Slate columnist Dahlia Lithwick captures this sentiment perfectly. In a recent piece on the attendance of the annual State Of The Union address by the Justices of the United States Supreme Court, Lithwick writes:

The justices attend the State of the Union in their identical black robes for the same reason they are expected to sit there impassively amid the mayhem: They are supposed to be a testament to the fact that they are different from the elected officials all around them. Instead of complaining about how awkward it is to have to hide their feelings and ideologies, the justices should avail themselves of this once-a-year opportunity to show the public that their feelings and ideologies don’t matter in the first instanc[emphasis added].

Contrast this with appellate judges in Pennsylvania. No matter how fair or impartial the judge who’s finally elected, it’s very difficult to even get on the ballot without winning the favor of a state political party.  Moreover, judges can’t get on the bench without stumping for votes and raising campaign contributions, just like any other politician. Is it any wonder that a majority of Americans believe that campaign contributions have an influence on judicial rulings?

This is why we favor Merit Selection for Pennsylvania’s appellate judges. To honor that distinction between partisan politicians and impartial judges. To get judges out of the business of running political campaigns and raising campaign funds, and to restore the trust of Pennsylvanians in a fair and unbiased judicial system.

Opponents of Merit Selection of appellate judges often argue that the hybrid appointment system – in which a nominating commission recommends a slate of candidates for open seats on the bench – lacks transparency. Merit Selection, critics claim, can never be as open and transparent as choosing judges by popular election. But we’re assuming that partisan election of judges is an open process, accessible to the public. How true is that assertion?

An article in Monday’s West Chester Daily Local News points out the reality; partisan election of judges isn’t the model of public access that it’s touted to be. Before judicial candidates can get on the ballot, they have to worry about securing the nomination of their preferred party. For instance, take the candidates competing for the endorsement of the Chester County Republican Committee.

A nod from the committee is seen as almost certain assurance that the candidate will win the party’s nomination in the primary election, while failing to capture it spells the exact opposite.

Each of the candidates has already begun peppering the committee members with letters and telephone calls touting their own experience and qualifications for filling the judicial seats that were vacated by the retirements of Judge Thomas G. Gavin and Judge Ronald Nagle, both of whom have taken the role of senior judge on the court.

In order to get on the primary ballot as the party’s endorsed candidate, judicial candidates have to win a thumbs-up from a handful of political committee members, who are under no legal obligation to disclose their deliberations to the public.  As we pointed out in Tuesday’s post, to get the endorsement of the Philadelphia Democratic Committee requires a sizable political  contribution.

And the problem is only magnified for candidates at the appellate court level. Candidates for the Superior, Commonwealth and Supreme Court in Pennsylvania need the endorsement of a statewide political party to have any real hope of getting elected. Without those endorsements, judicial candidates are effectively locked out of the judicial selection process, regardless of their experience or ability.

By contrast, Merit Selection shifts the focus from a judicial candidate’s political savy, party connections, and fundraising prowess back to the aspiring jurist’s qualifications for the bench.  The best Merit Selection systems are specifically designed to ensure that the nominating process is open to the public. All of which makes Merit Selection a better way to choose appellate judges in Pennsylvania.