judgesonmerit.org

The courts have become a football in Wisconsin’s ongoing political fights.  Wisconsin’s judges, like those in Pennsylvania, are elected, and judicial elections have become markedly more contentious since Wisconsin Gov. Scott Walker’s row with the state’s labor unions last year.  The Wisconsin State Journal has called for merit selection stating:

 Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing.  Lost in the process is the need for experience, independence and impartiality.

The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:

Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.

Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.

A poll conducted by Justice at Stake has shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today.  This highlights the dangers of judicial elections.  Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.

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 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.

The recent events in Wisconsin have brought to a head growing concerns about the independence and integrity of the Wisconsin judiciary. The latest proponent of change? Chief Justice Shirley Abrahamson. According to a Wisconsin State Journal editorial, Abrahamson “indicated in a memo to her colleagues this week that she wants her Wisconsin Supreme Court to be more transparent.” And even more significant for Wisconsin citizens and fair courts advocates, she also “indicated a willingness to discuss whether high court justices should continue to be elected.”

The editorial refers to many of the growing problems of the Wisconsin Supreme Court—from “vicious and money-soaked” judicial campaigns to “partisan squabbles” to actual “physical altercations.” Like political cartoonist Phil Hands, the editorialist sees the comedy of the situation. “It sounds more like a ‘Three Stooges’ episode than the highest court in Wisconsin carefully and dispassionately deciding sensitive and complicated legal disputes.”

However, as those watching the events in Wisconsin unfold would agree, public distrust in the courts is never funny. “Wisconsin’s wild and bruising judicial elections soil even the reputations of the winning candidates.” The article laments, “These ugly judicial elections, driven by shadowy special interest groups with lots at stake in future court decisions, are a huge contributor to our high court’s embarrassing dysfunction.”

PMC shares the concerns expressed by this editorial regarding the danger of partisan politics and excessive campaign spending. Like the editorialist, we, too, hope that Abrahamson’s “memo this week indicates renewed interest in merit selection — a big reform that’s badly needed to restore trust in high court decisions.”

Here’s a recusal question related to judicial elections, but one with a twist. What happens when a sitting judge or justice pays or has paid a lawyer or law firm for help in an election case and that lawyer or firm appears before the judge? That’s the issue facing Wisconsin Supreme Court Justice David Prosser.

According to the Milwaukee Journal Sentinel, Prosser paid $75,000 to the Troupis law firm for representation in the recent recount election. Jim Troupis, head of the Troupis law firm, is scheduled to argue before the Wisconsin Supreme Court in a major First Amendment case in September. Should Prosser recuse?

Leading ethics experts told the Milwaukee Journal Sentinel that he should. New York University School of Law professor Stephen Gillers explained that “Prosser shouldn’t hear the case because Troupis’ work was so important to keeping Prosser on the bench and because it occurred so recently.”

But when asked a few months ago, Prosser responded that he thought it would be okay to sit on the case. The director of his campaign, Brian Nemoir, recently told the newspaper that “Prosser planned to stay on the case and could remain impartial.”

Judges don’t live in a vacuum and certainly have many ties to other lawyers before (and after) they join the bench. But should a judge preside over case sof those who were very helpful in getting or keeping him on the bench? Elections raise more than questions about monetary campaign contributions, and this case highlights another reason to find a better way to pick judges.

The recent fracas on the Wisconsin Supreme Court has given cartoonist Phil Hands plenty of material for his political cartoons. However, even he isn’t happy with his muse. In yesterday’s edition of the Wisconsin State-Journal, in “Clowns on the Court” (with cartoon, found here) he criticizes the partisan divide on the court, writing “The court is politically polarized, resorts to name calling in its official opinions and has even seen physical violence break out in its chambers.” He blames the court’s current state on Wisconsin’s judicial elections, “soaked with special interest money that taints the justices in the eye of the public.” Moreover, he highlights another flaw in Wisconsin’s system: the governor has complete discretion to appoint who he wishes to the court in the event of an interim appointment, leaving the system vulnerable to abuse. His solution? Merit Selection. Merit selection, he suggests, would keep special-interest money out of the courtroom and restore public confidence, while providing a check on the unilateral power of the governor to appoint whoever he wishes.

The recent events in Wisconsin have everyone talking, and no one should like what the public has to say: it has lost respect for and trust in the judiciary. Public faith in the courts is the very basis of our justice system. When allegations of physical altercations arise and enormous amounts of judicial campaign spending create cause for concern, courts need to defend their independence, impartiality, and integrity.

Wisconsin state senators, Tim Cullen (D) and Dale Schultz (R), have offered merit selection as the means by which the judiciary can regain public confidence. The senators said in an interview with Steve Walters that they understand how the public might not trust its courts. Sen. Cullen said, “I no longer trust the court on the merits of the law. I know that sounds pretty inflammatory, but if I was appearing in a case before the Supreme Court and my opponent had spent a tremendous amount of money on one of the justices, I wouldn’t feel comfortable with that court.” Sen. Schultz similarly blames in the influx of campaign contributions for public distrust in the courts: “With all the money in the races it encourages justices to be activists on both sides. This puts into play whether the decision is based on who gave what or spent money on their behalf. Can we survive in this country when people know that incentive is there? ”

Others fault hostility among the justices for the distrust of the courts. “Given the nature of the issues faced by the Supreme Court, intellectual conflict is understandable; hand-to-hand combat is not acceptable and demeans the court.” The editorial suggests that a unanimous apology from the court would be an important first step, but also says, “We fear that the court has reached a level of dysfunction beyond repair.”

The concern is well placed. When people go to court and wonder if campaign contributions influence their judge’s decisions, how can they trust the judiciary? When political hostilities come to blows, how can the public believe in the integrity of the judiciary? A restoration of public confidence in the courts is sorely needed. Merit selection can refocus the conversation around the ability of judges to impartially apply the law and renew public faith that a decision will be a fair one.

On Monday, 3/28, the Supreme Court is scheduled to hear oral arguments in McComish v. Bennett, a case that challenges a portion of Arizona’s Citizens Clean Elections Act. The ruling could have serious consequences for states that use public financing to allow elected judges to run for the bench without having to raise campaign funds.

The challenged part of the law allows a publicly financed candidate, facing an opponent spending private funds, to receive an extra infusion of public money if their opponent’s spending goes over a certain amount. This “trigger provision” ensures that publicly financed candidates won’t be at a disadvantage, limited to a certain level of spending, while their privately financed opponents are free to spend as much cash as they can raise.

At issue is whether or not the provisions represent a limitation on the rights of candidates who choose not to accept public financing. According to our partners at the Justice at Stake Campaign:

[a] federal judge declared the Arizona provision unconstitutional, saying it violated the First Amendment because it caused candidates without public funding to limit their campaigning, fundraising and spending of campaign money. The Ninth U.S. Circuit Court of Appeals disagreed, saying the provision imposed “only a minimal burden on FirstAmendment rights,” that there was no evidence of it chilling free speech rights, and that it was needed to fight a perception of corruption.

Four states – North Carolina, New Mexico, Wisconsin and West Virginia – have turned to public financing plans, to help alleviate the need for campaign fundraising by appellate judge candidates. A ruling against the Citizens Clean Elections Act would likely invalidate similar trigger provisions contained in all four of those plans. Candidates who opt into public financing in future judicial elections will be forced to limit their spending, while candidates who choose to raise their own funds will be free to spend as much as they can amass. How many aspiring appellate judges will choose public financing, knowing that they won’t be able to respond if their opponents outspend them?

While we respect any attempt to mitigate the influence of campaign spending on the outcome of judicial elections, we think that a better solution is to completely eliminate campaign financing as part of the process. Let appellate judges reach the bench based on their experience, skills and qualifications, not on the back of a huge campaign war chest. That’s why we support Merit Selection for appellate judges in Pennsylvania.

Despite their ostensibly nonpartisan structure, recent elections for the Wisconsin Supreme Court have proven as bitter and heated as any political contest in memory. When then-Justice Louis Butler ran for re-election in 2008, he was defeated by challenger Michael Gableman, who led a multi-million dollar smear campaign that distorted Butler’s record.

This year’s contest, which sees self-described conservative Justice David Prosser up for re-election, is expected to be just as contentious. Wisconsin’s labor unions are making plans to oust Justice Prosser, as part of a planned push back against the recent passage of a bill stripping public unions of their collective bargaining rights.

Prosser’s opponent, former prosecutor JoAnne Kloppenburg, has received praise for her politically independent stance. Unfortunately, the intentions of the candidate often mean very little when races can be influenced by political party and interest group spending that’s completely out of their control. In the 2008 race, outside groups out-spent the candidates by almost 11 to 1, a margin which even alarmed the candidates themselves.

No matter how apolitical Kloppenburg remains, the unfolding narrative of the election is already becoming clear. The unions and the political left are promoting Kloppenburg as a weapon against the policies of Governor Scott Walker and the Republican-controlled state legislature. The pretense of nonpartisan elections has never been less accurate. Whatever your political views, the judiciary is diminished whenever a judicial contest is decided not on the qualifications and ability of the judges in question, but by political expedience and campaign spending.

As we make our case for reforming the way Pennsylvania selects its appellate judges, we’ve consistently tried to explain the things that (should) make judges different from politicians. Legislative and executive positions are political by design. Holders of those offices are elected in partisan contests, running on a political platform, with clearly defined goals in mind once they win. They win votes because of the actions they promise to take once in office, and are accountable for those promises when running for re-election.

Judges, by contrast, are supposed to be impartial. They’re supposed to approach each case without prejudice, to make decisions based on the law and the facts at hand, rather than political ideology, or even the will of the majority. The law seeks to protect the rights of parties, even if the majority would prefer otherwise. In those cases, judges should be able to make the unpopular decisions, without having to worry about their jobs.

Unfortunately, judges in many states have to be successful at the polls before they can even reach the bench. An article from the magazine Campaigns and Elections shows that the strategists who help politicians raise money and stump for votes have definitely started to pay attention.

Joseph Cozzolino, president of Judicial Campaign Consultants, says that the contentious judicial election in Wisconsin is of a piece with a trend he has noticed, even in non-partisan elections, toward increased participation by outside partisan groups. Indeed, he routinely advises judicial candidates to position themselves as a partisan candidate would in any other election by brushing up on the issues driving the political debate and emphasizing their personal background rather than professional history in biographical spots.

“Very often in judicial races, people try to portray themselves as a skilled lawyer, but people are not always doing an analysis of your lawyering background so much as looking at the same issues that you would for non-judicial races,” says Cozzolino. “You’ve got to come across as aware and sensitive, even in judicial races.”

You’d be hard-pressed to find a tidier summation of why electing  judges is antithetical to the ideal of an impartial and unbiased judiciary. Political skills and campaign fundraising ability are what gets politicians elected. How is the public supposed to believe that elected judges can simply put all those considerations aside once they’ve been sworn in?

The races to fill appellate court seats are becoming increasingly partisan, marked by outrageous advertising and huge increases in campaign spending. The result is a judiciary that’s tainted with the perception of bias. The decisions of even the  most impartial judge are measured against campaign rhetoric and lists of donors, and the public’s faith in the fairness of the courts continues to erode.

If we want to restore public confidence in Pennsylvania’s appellate judges, we need to keep them from having to be politicians in the first place;  get them out of the fundraising game, and let them reach the bench on the basis of their ability and experience. We think it’s a better way to select appellate judges, and that’s why we’re working to bring Merit Selection to Pennsylvania’s appellate courts.