How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?

It’s a problem that’s getting worse, as big money has started pouring into Illinois judicial races. Last fall, more than $3 million was funneled into the retention campaign of Illinois Supreme Court Chief Justice Thomas L. Kilbride — the most in state history for a retention race.

As judicial campaign spending continues to increase, mandatory recusal rules are an increasingly important tool. They help mitigate the appearance that impartial jurists might be influenced by campaign donations. They also prevent judges who might be tempted to show favoritism from ruling on cases involving donors. But we think a better solution would be to relieve appellate judges of the need to raise campaign funds in the first place.

Under Merit Selection, there is less potential for influence, real or perceived, because judges can reach the bench without needing campaign donations. Appellate judges are evaluated based on their knowledge, experience and skill, instead of their ability to amass campaign funding. And when they go before the voters in retention elections, they’re not running against a political opponent. They’re running on their service on the bench, a record that the public can look to when deciding if they deserve to be retained.

Potential conflicts of interest aren’t completely eliminated, of course, but one important source is taken out of the equation. Judges can rule without the specter of campaign donor influence hanging over their decisions, and the public can be more confident in the fairness and impartiality of the courts. That’s one important reason why we support the switch to Merit Selection for Pennsylvania’s appellate judges.

Some have argued that these elections demonstrate that electing judges is the answer and have predicted that the Merit Selection movement will suffer as a result.  We disagree.  As the Philadelphia Inquirer argued  in an editorial earlier this week, these recent retention elections show that Merit Selection works and does not take any power away from the voters:

Even with proposals to switch only the state’s appellate courts to appointments, labor unions, trial attorneys, pro-lifers, and other merit-selection foes still contend that appointing judges denies voters’ rights. Well, Iowa proves them wrong: Voters had their say when the judges came up for a retention election.

We may think that a particular retention campaign was misguided and wrongly focused on ideology and the popularity of a decision rather than on the factors we believe should drive such decisions: whether a judge behaved fairly on the bench, was timely in completing work, was regarded as writing sound, fair decisions and gained a reputation for honesty and high ethical standards.  But disagreeing with a campaign or being disappointed in an election outcome does not mean the Merit Selection system failed.  If there are to be retention elections, voters must have the freedom to make good and bad decisions in the ballot box.

Retention elections have never been the perfect solution but they have been the component of Merit Selection that guarantees a strong, clear role for the public in the judicial selection process.  In theory, these elections should be different – with candidates running unopposed on a nonpartisan yes/no ballot, there should be no need for expensive campaigns and no overt politicization of the judge on the ballot.  For much of history, this has proven to be the case: judges didn’t raise money, most were retained; on occasion, retention was used to get rid of a judge that voters felt should no longer be on the bench.

In recent years,  some retention elections have become more high profile, including attracting special interest money.  But this seems to us to be more a factor of particular hot button issues than the inevitable product of the retention system.  It is our job to ensure that our courts remain special institutions where money, popular opinion and partisanship cannot hold sway.

Retention can be what it was intended to be: a tool that guarantees that the people can weigh in on a judge’s performance, without becoming a weapon of partisanship and special interest.   The antidote to what happened in Iowa is better education campaigns – about the constitutional roles and obligations of our courts and judges, the purpose of retention elections and the problem with having judges who fear they must conform to popular will.  Sometimes that campaign will work; this time, it did not.  But for those of us who believe Merit Selection is the better way and who believe retention maintains a strong role for the people in the judicial selection process, that is a risk we are willing to take.

The point is: Merit Selection works.  Iowans voted out judges they didn’t want on the bench.  We disagree with those voters’ motivations, but we believe it’s important they had the opportunity to weigh in.  As the Inquirer notes “Most Iowa voters were harsh and arbitrary in their assessment of the three justices, but no one can say that voters were denied their voice.”

Cohen also focuses on the money problem and the skyrocketing cost of judicial elections:

The money is almost always intended to buy justice in one way or another. Business groups funnel contributions to candidates who will let businesses trample on the rights of workers and consumers. Plaintiffs’ lawyers, on the other hand, want judges who will uphold sky-high damage awards — and large attorney’s fees.

[W]hat O’Connor was arguing for has nothing to do with judicial politics or gay rights or constitutional interpretation, and everything to do with money and judicial elections. That shouldn’t be a partisan issue.

We agree and are pleased that in Pennsylvania, Merit Selection is an issue that unites Republicans and Democrats, conservatives and liberals, business-oriented organizations and civic, religious and good government reform groups.  The challenge is to translate what has become a growing concern about the corrosive effect of money in judicial elections into the impetus for meaningful reform.

As Lithwick explains:

What frightens O’Connor about judicial elections isn’t the idea of more accountability or transparency for judges: She favors that. . . . What scares O’Connor is that the millions of special interest dollars pouring into these judicial election campaigns will start to influence judges. She also worries that millions of dollars of special interest money pouring into judicial races tells the public exactly what  [the leader of the vote no campaign] is trying desperately to prove in Iowa: It’s not just justice that can be bought and sold to the highest bidder, it’s the justices themselves.

Question 3. A request from a lawyer in the Charlotte area for advice on how to change a system of judicial elections to merit selection.

“Put together some citizens, preferably some with some clout,” Justice O’Connor said. Voters want to keep their right to vote, and they can, in a system of merit selection plus retention elections. “Get judges in there and see how they do. If you don’t like them, vote them out,” she said. “That’s how you sell it.”

That makes sense to us.  Retention is a key part of the currently pending Merit Selection proposals in Pennsylvania for just that reason. Thanks, Justice O’Connor.

Survey respondents valued the idea of a nonpartisan nominating commission composed of lawyers and nonlawyers.  They believed the commission would focus judicial selection on qualifications and also would limit the Governor’s discretion in making judicial appointments.

Central to the survey’s findings was the respondents’ beliefs that a Merit Selection system with regular retention elections would actually provide more opportunity for voter input in judicial selection.  Voters felt that having every judge stand for retention at regular intervals would increase accountability and give voters an important chance to weigh in on a judge’s performance.

The researchers observe that:

It is clear that in a head-to-head choice, after having considered in some detail the major characteristics of both the current nonpartisan election system and the hypothetical commission-based system, the registered voters surveyed in Washington during the 2008 election season clearly prefer the commission system.

We hope voters in Washington will have an opportunity to decide whether to implement a new way to choose their judges.

He’s talking about the federal system, a pure appointment system. The president nominates a judge, who then must be confirmed by the Senate. If confirmed, the judge serves for life. There’s no retention process; the judge never goes before the public in any sort of election or evaluative process.

Under Merit Selection, by contrast, after an initial four year term on the bench, the appellate judge would stand before the public in a retention election. The public would have the ultimate opportunity to determine whether the judge should continue to serve for a full ten-year term. This process is repeated every ten years thereafter (until the judge voluntarily resigns or reaches the mandatory retirement age).

We understand that the President (who nominates) and the Senators (who confirm) are elected representatives of the people and that the people are therefore represented in the federal process. We agree, and point out that this is also true in Merit Selection where the Governor nominates and the Senators confirm. But retention offers a direct role for the public to weigh in on whether the judge should remain on the bench.

So, when you’re talking about democracy and a role for the people, Merit Selection offers more than the federal system.