Should Pennsylvania judges be elected? Recent scandals force the question
“Special interests are increasingly seeing judicial elections as an attractive investment,” said Matt Menendez, attorney for the Brennan Center for Justice.
By Bill Toland / Pittsburgh Post-Gazette
When judges are forced to raise money and campaign for office like politicians, it should be no surprise that they often act like politicians, according to judicial watchdogs.
Exhibit A is former Justice Joan Orie Melvin, whose tenure on the state Supreme Court was done in by politicking illegally on the public dime, using office staff to do campaign work. She was booted from the Supreme Court two years ago.
And that open politicking — and worse — is once again on full display on Pennsylvania’s top court, where Chief Justice Ronald Castille and Justice Seamus McCaffery have spent the past few weeks engaging in a bitter back and forth, stemming from Justice McCaffery’s role in the state’s ongoing pornographic email scandal.
Justice McCaffery accused the chief justice of waging a years-long campaign for his ouster, and last week, Chief Justice Castille’s happily confirmed his rival’s suspicions, saying the Irish-born justice lacks compassion and is a borderline clinical sociopath.
It’s a troubling affair, and it’s one that has prompted reformers to remind Pennsylvania that there’s another way of doing business — jurists selected by merit, rather than popular election.
Orie Melvin’s criminal case, in particular, was “absolutely, directly, an election-related problem,” said Matt Menendez, attorney for the Brennan Center for Justice, a policy institute based in the New York University School of Law. “Elections cost money. In order to compete, a justice has to go out and raise money.”
And soon, it could be a lot more money, threatening the impartiality and above-politics image that judges are supposed to maintain. In a post-Citizens United world, political action groups, unions, and individuals have more freedom to contribute to campaigns. More than ever before, that money will be steered toward state-level judicial elections, as donors realize they can get more bang for their buck by electing a justice for 10 years than a lawmaker for two, or a governor for four.
“Special interests are increasingly seeing judicial elections as an attractive investment,” Mr. Menendez said. Much of that money will be aimed at contested, multi-candidate elections, but even retention elections are drawing more donor investment than they used to.
“After Citizens United, and after [McCutcheon v. Federal Election Commission], there is more concern in the community [about] what will be the effect on judicial elections,” he said. The U.S. Supreme Court is “working systematically to dismantle a lot of the campaign finance laws” that have governed politics for a decade.
Citizens United v. FEC, decided in 2010, stuck down a ban on independent political contributions from corporations and unions. McCutcheon, decided this year, overturned the hard limits on individual contributions to parties and national campaign committees.
And Williams-Yulee v. The Florida Bar — a case about whether rules prohibiting judicial candidates from personally soliciting campaign funds violate the judge’s First Amendment rights — is now before the court.
Both of Pennsylvania’s gubernatorial candidates, GOP Gov. Tom Corbett and Democratic challenger Tom Wolf, said in a recent debate that in light of the ugly drama unfolding on the state Supreme Court, both would support merit selection of appellate judges.
Asked again at a campaign stop in Pittsburgh this past week, Mr. Corbett said, “when it comes to merit selection of appellate judges, I’m there.”
It wasn’t always this way in Pennsylvania. The state started out using direct election, but by 1790, Pennsylvania judges were appointed by the governor for life-long terms. In 1838, rules were amended to require state senate appointments of gubernatorial elections. In 1913, the state moved to a non-partisan election process, and, in 1968, the current system of political elections followed by retention votes was put in place by way of the state’s constitutional convention.
Changing Pennsylvania’s judicial selection method would mean changing the constitution.
There are several methods for selecting appellate judges and state Supreme Court justices: non-partisan election (meaning the judge’s party affiliation does not appear on the general election ballot), independent committee nomination, appointment by the governor, election by the state legislature, and a fully partisan election.
The last of these is the method Pennsylvania uses, at least for the judge’s initial campaign — prospective justices (like the rest of our appellate judges, common pleas judges and magisterial judges) raise money and run in contested elections. In the most recent year in which Supreme Court seats were up for grabs, 2007, Justice McCaffery and Justice Debra Todd, both Democrats, bested Republicans Mike Krancer and Maureen E. Lally-Green.
After election, the Supreme Court justice serves a 10-year term, then is subject to a yes-or-no retention election. Only once since Pennsylvania’s new judicial election laws were put in place in 1968 has a justice not been retained: Justice Russell M. Nigro lost his retention bid in 2005.
Many of the states now using direct elections of judges do so because the old system of political appointments was prone to abuse by urban party machines. But some observers now believe the pendulum has swung in the other direction, driven — for now — by GOP cash.
The Republican State Leadership Committee, for example, plans to spend about $5 million on judicial races this year, and outside money has poured into Tennessee all summer, forcing three Supreme Court justices to raise more cash than usual and spend heavily on TV ads in order to defend their seats.
That challenge wasn’t successful, but other races are still up in the air. According to an analysis published Friday by Justice at Stake, a Washington, D.C., judicial watchdog group, more than $9 million has been spent on TV ads this election cycle on state Supreme Court races.
“It’s a lot cheaper to buy a state court than a state legislature. There are fewer seats and longer terms,” said Bert Brandenburg, executive director of Justice at Stake. “Courts are not supposed to be up for auction. [But] this continuous explosion in special interest and political money [is] trapping judges in a system they did not sign up for, having to go out and become professional fund-raisers,” and then face those same donors in court.
That may be true, but the best judges are able to ignore the pressure to respond to donors, said Arthur Hellman, a professor at the University of Pittsburgh School of Law. “Once they’re there, they are supposed to put their politics aside,” he said.
He reiterated the fact that there’s no perfect system for selecting judges.
“When something like this happens, a high-visibility scandal, it inevitably raises questions about how these justices are selected,” Mr. Hellman said. “But every system produces an occasional bad judge.”
The federal selection system, for example — appointment by the president, approval by the U.S. Senate, with vetting by the Department of Justice and the Senate Judiciary Committee — is a multi-layered, non-elective system. But it’s also the system that produced U.S. District Court judges Samuel B. Kent (a George H.W. Bush nominee) and G. Thomas Porteous, Jr. (a Bill Clinton appointment), both of whom were impeached in the last five years.
“People use this phrase, ‘merit selection,’” as if it’s an apolitical process, Mr. Hellman said. “It’s really a different [type of] political process.”