judgesonmerit.org

The Harrisburg Patriot-News featured an op-ed by PMC’s Lynn Marks and Shira Goodman this weekend. The op-ed opens with a question about the money spent in the election — millions by the candidates and perhaps millions more by political parties and other third-party special interests:

Only 20 percent of registered voters voted for a Supreme Court candidate. So, what did that money buy? Diminishing public confidence in our court system.

Marks and Goodman go on to explain the problems caused by the role of money in the electoral process and the inability of the recusal system to address these problems.

Marks and Goodman conclude, “The solution to the problem of money and judges is to get money out of the judicial selection system. The only way to do that effectively is to change the way we pick appellate judges.”  They explain why other proposals, such as campaign finance reform or public financing, would not be as effective “because both maintain the role of money in the selection process.”

The real solution is Merit Selection.  “With a merit selection system, appellate court candidates don’t have to raise money from those who are likely to appear before them. This results in public confidence in the process and trust that the scales of justice are in balance. And, that, in the words of that Mastercard commercial, “is priceless.””

An editorial in the  Wisconsin State Journal urges the adoption of Merit Selection in the face of increasing concerns about the role of money in judicial elections and the pressure on judges to state their opinions during judicial campaigns.  In fact, there is now a pending recusal motion based on a Supreme Court justice’s campaign trail statements about sentencing decisions and procedural issues in criminal cases. The editorial notes:

[The recusal] request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin’s have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.

The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?

Studies across the nation reveal decreasing public confidence in the courts, in large part due to the role of money in judicial campaigns.  It is crucial to maintain the public trust in the fairness and impartiality of our courts.  Without that trust, the foundation of our system is undermined.

Why continue to use a system of judicial selection that results in a lack of public confidence in our judges and courts?  The Wisconsin State Journal has a good solution for Wisconsin and Pennsylvania: “Reform is required. Merit selection is the right choice.”

The Southeast Texas Record reports that a judge in Texas is being asked to recuse because of campaign contributions made to him by lawyers representing defendants in a toxic exposure case. During a recusal hearing before a different judge (following the original judge’s denial of the recusal motion), the plaintiffs argued:

“We don’t think we can get a fair trial from Judge Floyd. . . It’s undisputable he has taken money from the (defendants’) law firm … we believe the payment is a violation of due process.”

Both parties discussed Caperton v. Massey during the recusal hearing: defendants argued that Caperton was much more “egregious”, while plaintiffs noted “the case shows a growing ‘national concern’ to whether judges should preside over any case where donated money turns out to be the focal point.”

Which all raises the question: why are states like Texas and Pennsylvania still choosing judges in a way that requires fundraising from lawyers and parties that later appear in court?

PMC’s letter to the editor in response to the Philadelphia Inquirer’s editorial on Caperton v. Massey identifies Merit Selection as the way to get judges out of the fundraising business.  In the letter, PMC argues that rules requiring recusal in cases involving campaign contributions are a good first step, but more is needed to address the poisonous role of money in judicial selection:

It’s time to get judges out of the fund-raising business altogether. Today, when most of those surveyed are worried about the impact of contributions on how judges rule, we need a system that takes money far away from the scales of justice. When you go to court, you want a judge who considers the facts and the law; you shouldn’t be worrying about whether your lawyer or the opposing side gave a campaign contribution. Replacing elections for appellate court judges with merit selection is the way to eliminate this concern.

Our friends at Gavel Grab offer a complete analysis of the Caperton v. Massey argument, including commentary from PMC, the League of Women Voters and other amici.  Gavel Grab quotes PMC Associate Director Shira Goodman:

“Pennsylvania, which elects all judges in partisan elections, has seen first hand the steadily increasing influence of money in judicial elections. Coupled with that has been the decreasing public confidence in the impartiality of our courts. The more money that comes in, the less confidence the people have. The scales of justice need to be rebalanced. A strong decision by the Supreme Court requiring recusal in at least some cases will help to do that.”

Also posted on Gavel Grab is an email Justice At Stake sent to its Partners (including PMC) about the case, concluding with this encouragement:

We now must wait until the Supreme Court rules, but the last few months already represent an extraordinary victory in educating the public on threats to our courts, and in commanding media attention on the critical issue of protecting impartial courts from special-interest money.

On Tuesday March 3, the United States Supreme Court will be hearing oral argument in Caperton v. Massey — the case from West Virginia involving whether or not judges must recuse from cases involving major campaign contributors.  PMC Executive Director Lynn A. Marks explained in PMC’s press release why this case is so important:

Pennsylvania elects all judges in partisan elections and has seen first hand the steadily increasing influence of money in judicial elections.  Coupled with that has been the decreasing public confidence in the impartiality of our courts.  The more money that comes in, the less confidence people have.

Earlier this year, PMC joined an amicus brief urging the Supreme Court to set some standards governing recusal in such cases.  A key part of the argument was that the essence of due process is a fair and impartial judge.  The brief discussed the history of judicial selection and noted that because of the increasing expense of elections and the growing importance of campaign contributions, “judicial elections have created a crisis in public confidence.”

As PMC Associate Director Shira Goodman explained in PMC’s press release:

Money in the judicial selection process has led the public to believe that the scales of justice are out of whack. This is unacceptable. A strong decision by the Supreme Court requiring recusal in at least some cases will help rebalance the scales.

We will be watching and reporting on the oral argument and further developments.  We also recommend that readers check out Justice At Stake’s Caperton Resource Page, as well as this recent article from the Pittsburgh Post-Gazette.

Our partners at Justice At Stake commissioned a survey about the public’s attitudes towards the influence of campaign contributions on judicial decision-making , and guess what they found:  “An overwhelming percentage of U.S. adults believes that judges cannot be completely impartial and should not participate in cases that involve large campaign contributors.” As reported on Gavel Grab and in Justice At Stake’s press release, 81% of those surveyed also believe that judges should not be making their own decisions about recusing in such cases but instead should abide by the decision of another judge.

Reflecting on the poll results, Justice At Stake Executive Director Bert Brandenburg explained:

Americans overwhelmingly believe that campaign cash has no place in the courtroom. . . . They are very skeptical that a judge can be impartial when one side has spent big dollars to help put them on the bench.

As Pennsylvania’s judicial election season heats up, we should be asking ourselves why we continue to put would-be judges in the position of funding their campaigns with contributions from parties and lawyers likely to appear before them in court.  Why do we tolerate a system that undermines confidence that justice will be meted out impartially? It’s time for a change.  We need to get judges out of the fundraising business. Merit Selection can do that.

The Allentown Morning Call reports that a judge in Northampton County is being criticized for failing to reveal that he received campaign contributions from a party involved in a case. The case initially had been assigned to another judge, who recused herself because she had received campaign contributions from one of the parties.  Although the second judge raised other potential conflicts of interest, he did not disclose the campaign contributions and did not recuse.

In Pennsylvania — as in most states — judges are not required to recuse when campaign contributors are involved as parties or lawyers.  That very issue is now before the United States Supreme Court in Caperton v. Massey, which asks whether the Due Process Clause requires recusals in cases involving very signficant campaign donors.

The donations at issue in the Northampton County case are much smaller than in Caperton, but the same concerns are present: can courts maintain actual independence and can the public believe courts are independent when judges preside over cases involving campaign contributors?  We have long believed that the increasingly important role of money in judicial elections is damaging to the independence of the judiciary and the public’s confidence in the fairness of the courts.  The best way to solve this problem is to get judges out of the fundraising business.  Merit Selection can do this.

The fact that the United States Supreme Court has decided to hear Caperton v. Massey — the West Virginia case involving campaign contributors and recusal of judges — is of course big news to lawyers and judges.  But it’s also important to members of the public who come to the courts to settle disputes.  Here’s what Hugh Caperton, plaintiff in the case, told The Charleston Gazette about the issue of campaign contributions:

“In this country, money has begun to pervade and permeate every election that’s held. And I agree that it’s the right of each citizen to support their candidate. But you can’t have Supreme Court seats being propped up by millions of dollars from one individual or group,” he said. “It makes the appearance of impropriety so great that normal citizens like myself lose faith in the judicial system.”

Our justice system is based on the public’s trust and confidence that the judges will follow the law and apply it to the facts presented.  When people worry that campaign contributions might influence a judge’s decisions, that confidence is undermined.  We can’t afford that.

During its Friday conference, the United States Supreme Court voted to grant certiorari in Caperton v. Massey, the case from West Virginia that asks whether judges should be required to recuse in cases involving significant contributors to their election campaigns.  This case will be watched closely by judges in election states and by all those concerned about the escalating influence of money in judicial selection.  As Gavel Grab reminds us, “three in four Americans believe that campaign contributions can influence a judge’s decisions in court.”

The issues in this case touch a key problem with judicial elections — the role of money in campaigns and whether and how such contributions affect decisions in the courtroom.  The outcome will be interesting not just for any rules it might set down but for how it may change the face of judicial elections.  If new recusal requirements are imposed, will it dramatically change the campaign contribution game? If no requirements are set and recusal is left to the discretion of the individual judge, will even more money start flowing in to judicial candidates?  And what will this do to the public perception of how the courts work?

We will continue to post about this case as the briefs are filed and arguments are held, but we note that the whole issue of recusal in cases involving campaign contributors would be eliminated if we chose our judges a different way.