judgesonmerit.org

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.

In an excellent op-ed piece in yesterday’s Pittsburgh Post-Gazette, PA Supreme Court Justice Debra Todd contends that just as Lady Justice is Nonpartisan, so too are the justices of the Pennsylvania Supreme Court immune from partisan politics when ruling from the bench. We agree with Justice Todd that partisan politics should have no place in a court of justice. We trust, as does Justice Todd, that most judges are able to maintain impartiality in their decisions.

Yet while we share her dismay at the fact that so much attention during the recent election was devoted to the political balance on the bench, and agree this reflects a “fundamental misunderstanding of the judicial branch of government in Pennsylvania,” we think it has even more to do with the way we select judges in our state. If we expect our highest judicial officers to completely separate their political affiliation from their judicial decision-making, why do we elect them in hotly-contested, extravagantly-funded partisan elections?

Although, as Justice Todd says, “vacancies on the courts are filled by judicial elections . . . in 39 other states,” that widely-quoted statistic is misleading as it encompasses all levels of the courts and includes those states that use retention elections.  In fact, Pennsylvania is one of only six states, along with West Virginia, Alabama, Texas, Illinois, and Louisiana, that elects all of its judges, from Supreme Court down, in contested, partisan elections where judges run under party labels.

While we hope that no one party exerts political control of the court, is the public’s perception that political affiliation influences judges not the inevitable outcome of a system in which so many vote for judges strictly along party lines, often by pulling a straight-party lever? One can’t blame the public and the media for assuming the court is a political institution while we continue to select our judges in partisan elections.

Nor should we be surprised that Pennsylvanians “conflate[ ] the election of justices . . . with the role of service as a justice.” Why else would political parties spend millions on getting their candidates into office? The Republican Party, for example, spent untold hundreds of thousands of dollars paying for all of Orie Melvin’s TV commercials. In fact, both parties emphasized the importance of the Supreme Court election to party members because of the upcoming reapportionment of legislative districts.

In the Justice’s own eloquent words:

The statue of Lady Justice, whether displayed as the Greek goddess Themis or the Roman goddess Justitia, is often depicted holding the balanced scales of justice and wearing a blindfold. This depiction of Lady Justice embodies the ideal that justice must be rendered without reference to money, power, fear, favor, identity or political party. As a sitting justice of the Supreme Court of Pennsylvania, I am confident that Lady Justice is neither a card-carrying Republican — nor a Democrat.

Lady Justice is certainly neither a Republican nor a Democrat. But we highly doubt that she got her particular spot on the pantheon of gods in a partisan election. Short of a divine intervention, we think merit selection of appellate judges is a far better alternative to partisan elections if we seek Justice Todd’s ideal of a truly nonpartisan court.

An article in Wednesday’s St. Petersburg Times describes two judicial races where the campaign rhetoric is getting partisan – and personal – fast. While these races are supposed to be nonpartisan, personal attacks and statements about political leanings are raising eyebrows, as well as questions about how far candidates in these races can go when trying to sour voters’ opinions of their opponents.

When judges have to conduct (or endure) negative campaigns, politics becomes the focus. It discourages otherwise qualified candidates from running if they don’t have the connections and funds to run a strong political campaign. The message is clear. To be a judge, you also have to be a skilled politician.

Merit Selection relieves judicial candidates from the burden of campaigning. It lets judges be judges, by shifting the focus  back to each candidate’s abilities and qualifications. No plan for judicial selection can eliminate politics from the process, but we can prevent it from being a job requirement for a seat on the appellate bench in Pennsylvania.

Sometimes, we’re asked whether it’s possible to fix the electoral system, rather than changing to Merit Selection. Our critics often argue that we’d do better to improve voter education when it comes to judicial elections. We agree that voter education is a critical issue, and PMC spends considerable time, energy and resources on voter education initiatives during judicial election cycles. But, we remain convinced that even greatly improved voter education isn’t enough to salvage the elective system. We’re not alone in this assessment.

Blogger David Giacalone at f/k/a parses a discussion about the benefits of increased voter education, and reasons that Merit Selection is the best way to overcome the influence of money on judicial selection.

In a joint letter to the Philadelphia Daily News, PMC Board Chair Bob Heim and PMCAction Board Chair Bob Fiebach respond to a critic of Merit Selection. In an earlier post, we pointed out the critic’s fundamental misunderstanding of Merit Selection and unreasonable fear of letting the voters decide the best way to choose appellate judges. In their letter, our leaders neatly sum up the problem: “[The critic] does not understand what so many voters know: Judges are different.”

Heim and Fiebach point out that judges have different responsibilities than other public officials. Politicians are expected to make promises to constituents and campaign donors. At election time, those promises – kept or not – often decide their political fate. By contrast, judges “are sworn to uphold the law in an even-handed manner without regard to personal belief, political pressure, popular will, or the preferences of campaign donors.”

“How can we expect judges to campaign like other elected officials and then, when they take the bench, expect that the public will view them differently? No wonder this system breeds a lack of public confidence.”

Our leaders close with a reminder that Merit Selection advocates want to give the people a chance to decide the best way to select appellate court judges. Critics of Merit Selection seem very worried about letting the voters make this decision. Why is that?

After months of attack ads, and millions of dollars in third party spending, the race for a seat on the Wisconsin Supreme Court is over. Wisconsin has a new justice. The rest of us have a clear example of why we need to protect selection of appellate judges from elective politics.

Although Wisconsin’s judicial elections are technically non-partisan, support for the candidates lined up neatly along political lines. Incumbent Justice Louis Butler received support from Democrats and labor groups, while challenger Burnett County Circuit Judge Michael Gableman’s backing came from Republicans and conservative organizations.

In a race that the Associated press called “one of the state’s nastiest,” outside interest groups on both sides of the political fence spent millions of dollars on advertising. While nobody knows exactly how much money these groups poured into their ads, CNN reports that, as of Monday, more than $3 million had been spent “just on TV ads in the state’s top three media markets: Milwaukee, Madison and Green Bay.”

It isn’t just the dollar amount that’s scary. WisPolitics.com’s election blog reports that these groups outspent the candidates themselves 11-to-1 on TV ads. Even the candidates themselves expressed concern that their messages were being overwhelmed by the third-party ad blitz.

Finally, the content and tone of the advertising helped push the race into the media spotlight. Misleading attack ads from both sides prompted the editorial board of the Wisconsin State Journal to forgo endorsing either candidate. Instead, they chose to endorse “a better method of choosing state Supreme Court justices — a method called Merit Selection.”

We hope that the voters and legislators of Pennsylvania will see the wisdom in the State Journal’s declaration that “justice should be blind, but voters should not be blinded by misinformation.” It’s time to remove partisan bickering and big-money politics from selection of appellate judges. It’s time to replace partisan election of Pennsylvania’s appellate judges with Merit Selection.