The article, titled “The Cues Voters Use to Elect Unknown Candidates,” argues that “voters choose dozens of important state officials in every election without knowing a thing about them. So they rely on other cues — like political affiliations, pleasing names and who knows what else.” The article runs through some of the results of recent Texas appellate court elections, and tries to reconstruct the reasoning voters might have employed when making their selections.

Noting that the preeminent quality that voters in Texas are looking for is a “Republican ‘R’ behind [a candidate’s] name”, the article proposes that the real contest for officials occurs in the G.O.P. primary in March, giving even less time for voters to actually understand a candidate and make an informed choice, and leaving far less relevant qualities of candidates to serve as deciding factors.

The article poses the question, “When little else is known about two candidates in a G.O.P. primary, is a Hispanic surname a liability?” The judicial race in which Stephen Wayne Smith was victorious against Xavier Rodriguez for a spot on the Texas Supreme Court is used as an illustrative example. Little was known about either candidate going into the election. What, then, did the voters rely upon when making their choice? Names were all the public had available to them in the voting booth; it’s not unreasonable to wonder whether names decided the race.

When we elect judges in contested elections, we unconsciously – or consciously, as the case may be – impose our own biases and agendas onto the concept of justice, something that should be set wholly apart from politics, prejudices, and ideology. A judiciary must serve the people, but a judge’s fitness to serve should be determined by his or her ability to interpret the law and see that justice is fairly administered – not the ability to win votes, and certainly not by factors as inconsequential as a surname.

The editorial goes on to encourage the Texas legislature to adopt merit selection. We agree that the combined appointive and elective elements of merit selection provide the best means of ensuring fair and impartial courts. The public deserves a judiciary it can be confident in, not one tied up in politics and money. Judges have a unique position, and should be insulated from the campaigning and fundraising that accompany elections.

The editorial noted that in some states “where judicial elections have devolved into money-driven battles of ugly TV ads,” including Pennsylvania, “sentiment for change is building.” The perception of the role of money in elections is a primary reason for a change to Merit Selection. After citing the $4.5 million spent on the recent Supreme Court race in PA as reported by PMC, the paper noted:

The biggest problem is that judges and candidates for the bench must raise campaign money primarily from lawyers, groups and individuals who might have cases before those same courts. In statewide races, the sums can be enormous. It leaves the public wondering whether money is buying influence.

Referencing other problems with electing judges, the Star-Telegram asked rhetorically:

Who doesn’t want fairness, impartiality and justice when they go into court?

Who doesn’t want qualified, capable, independent judges deciding disputes?

Who honestly believes that the only way to achieve that is to elect judges through expensive campaigns that do more to undermine public confidence than to provide voter education about the judiciary?

Good questions. The first step in the process was set in motion at a hearing before the House Judiciary Committee’s Sub-Committee on Courts late last year.  If the state houses pass the legislation currently before committee in two consecutive sessions, the voters will have the ultimate say whether to amend the state constitution to make this important change to the way we select judges.

But Pennsylvania is not alone.  In West Virginia, the Independent Commission on Judicial Reform appointed by Governor Joe Manchin is hosting three public hearings, including one focused on Merit Selection.  As the West Virginia Record reports, Governor Manchin responded favorably to the announcement of the hearings:

Our judicial system is too important, not to act without listening to public concerns. . . . I thank the commission’s members for taking time out of their daily schedules to listen to West Virginians’ suggestions and ideas.

Texans, too, are talking about Merit Selection.  As reported in an op-ed in the Lake County Sun, the Caperton decision is renewing attention to the problems inherent in electing judges:

[Former Chief Justice] Phillips said the recent Supreme Court ruling should begin anew a national debate on how judges are chosen. [Chief Justice] Jefferson’s view was that the decision challenged Texans to do more to eliminate the perception that cash campaign contributions influence court decisions.

Op-ed author Willis Webb urges “Let the debate begin. . . again.”

We are looking forward to productive dialogue and debate in Pennsylvania.  The most important thing is to provide the opportunity for the public to weigh in on the critical question of how we select our appellate judges.

Jefferson had warned of the danger posed by money-packed judicial elections even before the Caperton decision came down, telling the state legislature earlier this year: “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”  The Express-News‘ editorial board concurs:

The judiciary system depends on an even playing field to maintain fairness.  And the influence of money and partisanship must be reduced to deliver the even playing field that Texans deserve.

That’s something everyone deserves — including Pennsylvanians.  The way to achieve that even playing field is by getting judges out of the fundraising business. The way to do that is to adopt Merit Selection.

Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .

[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”

How do you do that when you have to raise money. . . to run for judge in Texas?

This is a good question, and it’s one we all should be asking in Pennsylvania.  Of course, the answer to that question raises another pressing question:  if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?

The editorial notes that there is something we can do:

The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.

“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”

And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.

Voters in Pennsylvania can do something, too.  Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business.  We can only amend the constitution if the legislature twice passes the amendment and the public votes for it.  So, there is something we can do.  Let’s do it.

My parents gave me a good ballot name. My beautiful wife and three handsome sons adorned political advertisements on network television. But these things tell you nothing about my intellect, integrity or temperament.

My success depended primarily on a straight-ticket partisan vote.

Chief Justice Jefferson describes the seemingly senseless distribution of the counties he won and lost, and attributes the results to party affiliation.

He joins his predecessors in calling for Merit Selection, and he offers a compelling argument for change:

We must eliminate cynicism, money and partisanship in judicial selection. . . .  For the foreseeable future, I will win elections not because I am best suited for the job, but in spite of my qualifications. When a judge’s victory is based on party over principle, money over merit, cynicism over the rule of law, voters lose.

Well put.

The study by political scientists Chris Bonneau of the University of Pittsburgh and Damon Cann of Utah State University looked at three states — Nevada, Texas and Michigan.  Michigan and Texas use partisan elections to select judges, and Nevada uses nonpartisan elections. The influence of campaign contributions on decision-making — when other factors such as ideology were controlled for — was stronger in the partisan election states.

This is important information for Pennsylvanians to hear as we enter judicial election season.  Remember, we’re one of those states that uses partisan elections.  Isn’t it time to get judges out of the fundraising business?

Jefferson reserved the bulk of his speech for what he called “the corrosive influence of money” in judicial elections. Polls show that more than 80 percent of Texans believe campaign contributions influence courtroom events, he said.

“That’s an alarming figure — four out of five,” Jefferson said. “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”

Chief Justice Jefferson’s proposed solution is Merit Selection, and he follows in the footsteps of his predecessors who also criticized the judicial election system and called for reform.

As one court watcher, Craig McDonald, director of Texans for Public Justice, noted, ““Chief Justice Jefferson’s acknowledgement that the Texas judicial election system is broken is the first step in restoring faith in Texas courts.”  As in Pennsylvania, reform in Texas requires a constitutional amendment.  We hope the people will get to make the chance to decide for themselves whether to change the way judges are selected.

The Wall Street Journal’s Law Blog reports that a recently elected judge in Manhattan Surrogates Court has now been indicted and may face judicial misconduct charges based on a loan she received for her campaign.  Because the loan was not repaid by the time of the primary election, it converted into a gift and significantly exceeded campaign contribution limits.

Meanwhile, in Texas, Supreme Court Justice Nathan Hecht was just fined for violating campaign finance laws by failing to report discounted legal fees.  An editorial in the Austin American-Statesman argues:

Hecht didn’t list the discount on his campaign contribution report, though he’d written in a fundraising letter that he was getting in-kind legal help. He couldn’t report it because it was far more than the $30,000 limit on donations from one law firm. So he was hit with the rather minor fine for not reporting an illegal political contribution.

It was smelly enough that Hecht took the $168,000 discount from a firm with business before his court. Just as offensive was his letter to the state’s law firms, which have cases before his court, asking them to pay his legal bill. Hecht also had asked the state Legislature to pay the bill, but his support foundered when lawmakers learned that he had asked lawyers to pay it, too.

Hecht raked in $447,000 in political contributions after his letter went out to the state’s top law firms. While there is nothing illegal about that — lamentably — it is still unseemly for this state’s top judges to be begging money from the lawyers with cases before them.

Add to this the recent experience in Pennsylvania, where Philadelphia Traffic Court Judge Willie F. Singletary has just been found to have violated the Code of Judicial Conduct by directly soliciting funds for his election campaign and by promising improper conduct on the bench in return for donations.  It all leads to one conclusion: money should not be involved in the process of selecting judges.