Jul 31 2013

Merit Selection Myths: "Elite Attorneys" Control Nominations

One of the most common criticisms of merit selection systems is that “elite” groups of attorneys are nominating judges. The frequently unstated implication is that since the nominators are lawyers, they are going to pick judges who will serve their interests rather than those of the general public.

There are a couple of problems with this argument. First, approximately three-quarters of the states (and the District of Columbia) use merit selection on some level, and all but a couple require there to be non-lawyers on their nominating commissions. Additionally, most states either require that their nominating commissions are composed of an equal number of lawyers and non-lawyers or require (or allow) non-lawyers to be the majority.

Second, the belief that the attorneys on nominating commissions vote based on self-interest is not supported by any evidence. Rather, it is simply a product of stereotypical conceptions of attorneys.

If one looks at the work the attorney and non-attorney members do on any given nominating commission, they will surely see that they nominate judges based upon merit. For example, the Supreme Court Nominating Commission in Kansas collects detailed applications, professional references and writing samples from candidates. The commissioners review all of this material and then conduct exhaustive background checks and interviews. It is only then that they make their decision on who they want to nominate.

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The process is similar in every other state that uses merit selection. And regardless of where you look, you will find that the commissions are made up of dedicated members who are willing to make personal sacrifices to fulfill their duties.

For example, members of the former Tennessee Judicial Nominating Commission would sometimes drive up to fourteen hours round-trip just to interview a candidate. Additionally, they would sacrifice family time, put their own work on hold, and use their vacation time from their regular employment to attend the unpaid Commission meetings. They did all this because they understood how important their work was.

If everyone was informed about the composition of nominating commissions, what type of work they do, and how hard the commissioners work, it is likely that very few people would claim that the commissions are just a bunch of “elite attorneys” choosing judges out of self-interest.

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Jan 31 2012

Trying to Solve the Money Problem

Published by under Merit Selection

We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.””  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to

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that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

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Dec 12 2011

Talking About Whether There’s a Better Way

Published by under Merit Selection

Recently, we reported that a debate was held in Minnesota about whether to change the way judges are selected.  Now, we’re reading that similar debates are being held and questions raised about judicial selection in Tennessee, Virginia, and Wisconsin.  While each of these states is different and has its own unique no prescription viagra experiences in the judicial selection arena, the critical point is that the issue is being publicly discussed.  These discussions are important steps in the lengthy process of changing how judges are selected.  It is essential that the public be engaged and have the opportunity to debate and discuss the issue.

We know Pennsylvanians have strong views about how judges should be selected, and we also know that Pennsylvanians want the opportunity to decide if there is a better way to select judges than the current electoral process. Merit Selection bills are pending in both houses of the legislature, and it anticipated that the House Judiciary Committee will reschedule the public hearing that was initially scheduled for November.

We hope that Pennsylvania will soon be talking about judicial selection as well.  It is time.

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Sep 26 2011

The Quest to Find a Better Way

An article in Reuters examines an effort occupying several states: the quest to find a better way to select judges.

The article profiles the ongoing debate in Tennessee over whether to continue its Merit Selection system.  Defenders of the current system, including the legal and business communities, argue that ” judicial elections would lead to expensive campaigns — that they’d be asked to bankroll — and biased judges.”  By contrast, those pressing to change the system are eager to get more conservative Republicans on the bench.

The article also looks to Pennsylvania, recognizing the recent introduction of Merit Selection legislation designed as “an an effort to rein in the role of money and fundraising in judicial elections.”  We hope this effort will be successful and will lead to the opportunity for Pennsylvanians to decide how they want to choose appellate court judges.  (Remember, amending the Constitution to implement Merit Selection requires identical legislation to pass in two successive sessions and then a positive public referendum.)

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We know there will be discussion and debate. We just think it’s time to be talking about this critical issue.

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Jan 31 2011

Fight Resumes Over Tennessee Judicial Selection

The perennial fight over selection of appellate judges in Tennessee is back on, according to an opinion piece published in The Tennessean on 1/30. In “Judge-selection system in state instills trust,” Dwight Lewis explains how the state’s Merit Selection system works, and notes support for the plan from former Tennessee Supreme Court justice, and newly inaugurated governor Bill Haslam. Haslam cites his own experiences on the campaign trail as a reason for supporting the current system, saying “[a]s somebody who has spent two years going across the state campaigning, I’m just not sure we want our Supreme Court judges to do that.”

A 1/27 piece by Nashville Scene’s Jeff Woods states the problems with judicial elections even more bluntly. “Conservatives want judges to sing for their supper and submit to contested elections — but will that pimp out the bench?” After a sharp critique of both sides of the argument, Woods concludes that the political reality doesn’t bode well for a change in Tennessee. At least not yet.

For this session anyway, the most likely outcome probably is none at all. The Tennessee Chamber of Commerce already is talking about the need to send the whole argument to a summer study committee — a favorite water-treading tactic. Lawmakers will have to make a decision by 2012, when the current law expires. Who knows — a few Christmases from now, you might be able to buy someone a judge.

Woods’ turn of phrase eloquently captures the issues facing elected appellate judges here in Pennsylvania. Our appellate judges and justices are, in essence, required to “sing for their supper” by campaigning for votes, wooing political parties and collecting campaign donations. Any time they rule on a case involving a political ally or campaign donor, they’re left open to accusations that they’ve decided to “pimp out the bench.”

That’s why we’re asking our state legislators, and the people of Pennsylvania, to support the switch to Merit Selection of appellate judges, and why we’re rooting for Tennessee to leave its Merit Selection plan intact. We’ll certainly be keeping an eye on this ongoing debate.

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Jan 14 2011

A Different Kind of Money Problem in Tennessee

Something interesting is happening in Tennessee – where the Merit Selection system for choosing judges is again under fire.  The Times Free Press reports (hat tip to American Courthouse) that two sitting Supreme Court justices contributed to the Senate campaign of the opponent of a state representative who was vocal about wanting to change the judicial selection system.  The contributions were legal in Tennessee.  They wouldn’t have been in PA, which allows judges to make political contributions only when they are engaged in an election themselves (See Canon 7).

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Frequent Merit Selection critic Dan Pero asks why these contributions aren’t drawing the same fire as contributions to judicial campaigns:  “Why is there a perception that it’s impossible for judges to remain fair and impartial if they accept a campaign contribution, but no reasonable concern about bias is [sic] they make a contribution themselves?”

Perhaps surprising to Mr. Pero, we are very concerned about this.  Judges should of course have the right to vote like all other citizens, but judges do give up certain rights when they take the bench – this should include overt political or financial support in elections.

Judges should not be in the business of raising or making political contributions.  Even the Pennsylvania restrictions on judicial contributions do not go far enough – money and politics should stay out of the courtroom. They best way to accomplish that is to keep judges out of the electoral system – whether as candidates or political supporters.

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Aug 28 2009

Merit Selection Envy

Immediate Past President of the American Bar Association H. Thomas Wells confesses that he suffers from “Merit Selection Envy.”  The Chatanooga Times Free Press reports that Wells explained:

“I will tell you from a personal standpoint that those of us in Alabama who have partisan elections of judges look at Tennessee with a great deal of envy with how you select your Supreme Court judges through a merit selection plan. I certainly hope you don’t do away with it.”

Like Mr. Wells, we live in a state that elects all judges in partisan elections. So, we too must admit to Merit Selection Envy.  We think the cure would be a full dialogue that allows the people of Pennsylvania to decide whether we should change the way we select appellate judges.

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Jun 01 2009

Tennessee Sticking with Merit Selection

During the last year, we’ve periodically reported about the legislative wrangling over whether or not to renew Tennesee’s Merit Selection system.  Well, it seems that Tennessee is sticking with Merit Selection and as the headline reads in the Tennessean “rejecting the election of judges.”

As the Tennessean reports, the House and Senate have each passed bills to maintain the current system, which uses a nominating commission and retention elections.  There will be some changes to the process, including a reduction in the number of lawyers on the nominating commission.

The Chattanoogan‘s report offers a run down of the votes and also quotes Tennesse Bar President Buck Lewis: “‘We are pleased that it now appears that Tennessee will continue to have a system of merit selection and retention elections for appellate judges.'”

Smart move, Tennessee.

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Apr 20 2009

Tennessee Chief Justice Makes the Call: Merit Selection is the Way

The Memphis Flyer reports that Tennessee Chief Justice Janice Holder was very clear in her support for Merit Selection during her recent address to the Kiwanis Club.  Explaining why it is imperative that the Tennesse Merit Selection be renewed and continued, Chief Justice Holder offered an eye-opening explanation of the role of judges as referees:

Justice Holder began her luncheon remarks with a tongue-in-cheek announcement. “I’m gong [sic] to talk about basketball,” she said, presenting a facetious proposal to elect officials taking part in NCAA championship tournaments, allowing them to raise money, use attack ads against election opponents, “and show bits and pieces of video of some of these games where there were bad calls.”

After asking rhetorically, “Don’t you think that’s a more democratic way to go about it?”, she answered her own question this way: “It is ridiculous, isn’t it? You wouldn’t want your [basketball] officials to be elected.” Then came her clincher: “Judges are like those officials. You relay on them to call the game fairly.”

Chief Justice Holder is right — the best way to get the most qualifed, fair and impartial judges is Merit Selection.

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Apr 01 2009

Calls to Keep Using Merit Selection in Tennessee

An editorial in the Knoxville News Sentinel urges Tennessee to keep using Merit Selection.  While acknowledging that the system could be amended somewhat to improve transparency and increase public input, the editorial argues that moving to judicial elections would be a serious mistake:

Judges are not legislators. Running for office statewide puts them in the position of having to raise money for elections – and allegiance to big-time donors perverts the ends, if not the means, of justice.

A recent Supreme Court election in Alabama cost $5 million, and a similar race in Illinois five years ago exceeded $9 million.

Imagine a statewide judicial election in Tennessee on that monetary scale. A judge winning such a contest will not create a constituency but obligations that will haunt him or her on the bench. Judges’ constituencies should be the law, reflected in the books on their shelves and their years of study and experience.

We agree, and share the concerns about the role of money in judicial elections. Of course, we’re in good company, as recent polls show the vast majority of the American public is concerned about the effect of campaign contributions on judicial decision-making.

The editorial closes by citing retired United States Supreme Court Justice Sandra Day O’Connor: “‘Justice is a lot like friendship; if you have to pay for it, it’s not worth much.'”  That pretty much sums up one of the best reasons to choose Merit Selection.

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