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.

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.

Pennsylvanians for Modern Courts (PMC), reacting to the federal jury’s verdict in the trial of former Luzerne County judge Mark Ciavarella, urged the public to “Take back our courthouses.”
Executive Director Lynn A. Marks explained that “Courthouses belong to the people. Judges, court staff, and attorneys are there to serve the system, not to manipulate it for personal gain.” Tragically, this fundamental proposition was completely turned upside down in Luzerne County.

Deputy Director Shira Goodman explained that the public must now act to ensure that the lessons from the Luzerne County scandal will resonate across the Commonwealth. “It reminds us all of our own responsibility for our institutions of government and teaches that when something looks off, we must ask questions.”

PMC encourages the people of Pennsylvania to continue to question how this scandal was allowed to be perpetrated, and how safeguards in the justice system failed to prevent, or at least catch the problems, before the rights of innumerable children and their families were violated. It is time to implement changes that will forestall such abuses of power in the future. PMC urges that “We, the public, must call on our leaders in the Governor’s office, the legislature and the Supreme Court to make sure this happens.”

Pennsylvanians for Modern Courts is a statewide, nonprofit, nonpartisan organization working to promote the reform of Pennsylvania’s judicial system.

Judicial reform is being discussed in different forums across the state. The Pennsylvania Bar Association plans to conduct statewide public hearings examining the state’s judiciary as part of its study of the advisability of having a constitutional convention. These meetings will explore judicial selection and judicial campaign financing. There is also the possibility of hearings in the House, according to a spokeswoman for the new head of the House judiciary committee Rep. Ron Marsico. Sen. Jane Earll expressed her support for merit selection, criticizing the money involved in judicial elections: “[T]hey’re inundated with money from special interest groups – it’s become a popularity contest to see who can raise the most money.” We are hopeful that these steps represent a move towards ensuring Pennsylvanians have fair and impartial courts appellate courts.

Despite the money and partisan campaigning that occurred in some retention elections this year, PMC remains confident that retention elections have an important function to serve. Ideally, retention elections should: “insulate sitting judges from the most dangerous elements of elections – the influence of campaign contributions, political party pressure and popular opinion. To combat the influence of special interest groups in retention elections, it is important for:

good government groups, lawyers, bar associations and all those who care about fair and impartial courts to take responsibility for better public education about courts, judges, judicial independence and the role of retention elections.”

The editorial ends with a call for education, and emphasizes the importance of the public’s role in a merit selection system:

there must be systematic, ongoing public education so that there can be a real appreciation for the special role of courts and judges. We need public buy-in of the notion that we are all responsible for protecting fair, impartial, independent courts.

Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

Here’s what the local papers had to say:

The Philadelphia Inquirer reported that the 5-4 decision proved a victory for the Court’s conservative bloc, who maintained that a ban on corporate spending violated the First Amendment right to free speech. Most democrats, including President Obama, condemned the decision. In his dissent, Justice Stevens warned that the ruling “threatens to undermine the integrity of elected institutions around the nation.”

In a separate article, the Inquirer focused on what the decision will mean for Pennsylvania. Pennsylvanians for Modern Courts’ Deputy Director Shira Goodman predicted that yesterday’s ruling will “open the floodgates to direct corporate and union spending in statewide judicial elections.”

The Post-Gazette noted that the decision likely will cause Pennsylvania to change its own laws to now permit private corporations to spend their own money on political campaigns. PMC warned of the negative implications the decision could have on judicial races, a point conspicuously absent from the Court’s majority opinion.

The Times Leader quoted Goodman as well, underscoring the worry that the additional influx of money could affect the impartiality of state judges: “Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.”

For a media round-up…

Merit selection eliminates all this spending and, most importantly, stops the flow of money from lawyers to the campaigns of judges likely to rule on their cases.

The letter also focused on the role of the public in a Merit Selection process, including: participation on the nominating commission; providing information about applicants for appellate court vacancies to the nominating commission, the Governor and the Senate during the application/evaluation, nomination and confirmation processes; and voting in retention elections to determine if judges should remain on the bench.

Critically, only the people of Pennsylvania can change the way we select appellate court judges:

Pennsylvania can change the way we select appellate judges, but only if the people vote to amend the constitution. It is time to let Pennsylvanians make this decision.

The hearing was very informative.  Nearly all who testified — both those who supported the legislation and those who opposed it in some way — agreed that there are problems with the current electoral system, notably the role of money in the process.  This consensus is significant and reflects the public’s belief in the corrupting influence of money in the process.

Testifying on behalf of the legislation were PMC and PMCAction’s Bob Heim, Lynn Marks and Shira Goodman; Dave Taylor of the Pennsylvania Manufacturer’s Association; and Charlotte Glauser of the League of Women Voters of PA.  J. Whyatt Mondesire of the NAACP was scheduled to present testimony in support of Merit Selection but was unable to attend.

In the next few days, we will upload copies of the testimony presented at the hearing, but we offer a few highlights.  Bob Heim, Chair of PMC, focused on the need for reform and the importance of getting judges out of the fundraising business. He highlighted the public’s growing concern that money can influence judicial decisionmaking and called on the legislature to allow Pennsylvanians to decide whether to change the way we select appellate court judges.

Charlotte Glauser of the League of Women Voters of PA explained the League’s long standing support for Merit Selection, urging “Passage of these bills will do much to restore the public image of independence of Pennsylvania’s appellate court system.”

PMA’s Dave Taylor explained that Merit Selection would “improve the professionalism, integrity, and independence of the judicial branch of goverment.” Taylor explained:

By combining elements of elective and appointive systems for nominating our appellate court judges, Pennsylvania can uphold the professionalism of the courts and protect our jurists from the conflicts of interest that inevitably arise from political fundraising and campaigning.

Testifying in opposition were Tom Foley III of the Pennsylvania Association for Justice (formerly the Pennsylvania Association of Trial Lawyers), Professor Michael Dimino of Widener University, and Rick Bloomingdale, Secretary Treasuer of the AFL-CIO.  Professor Dimino actually endorsed a Merit Selection for the Superior and Commonwealth Courts and even for the trial level courts, but argued against Merit Selection for the Supreme Court.

Rick Bloomingdale of the AFL-CIO noted the organization’s current opposition to the legislation, but expressed a willingness to support an amended version of a Merit Selection plan. This is significant, and we are hopeful that as the Committee considers the bill, we can work with our traditional partners and with groups such as the AFL-CIO to design the best system of judicial selection for the Pennsylvania appellate courts.

In a publicly released letter to bill sponsor Matt Smith, Governor Rendell again expressed his strong support for Merit Selection:

I have said on many occasions that our system of electing appellate judges makes no sense. It is no secret that there is great concern in Pennsylvania about the role of money in judicial elections. Current law could allow judicial candidates to accept indirect contributions from lawyers and special interest groups that may eventually have to argue a case before that judicial candidate. It is no wonder that Pennsylvanians have been losing faith in our courts and our judges.

PMC and PMCAction are grateful to the House Judiciary Committee and its Subcommittee on Courts for the opportunity to present public testimony at yesterday’s hearing. We thank the bill sponsors, Representatives Smith and Will Gabig (R, Cumberland), for their leadership as well as all the representatives who attended the hearing.  We look forward to working together to achieve a better way for Pennsylvanians to select appellate court judges.