Does the Election of Judges Diminish the Quality of Justice?
by Danielle Jouenne
The impact of campaign contributions and judicial independence has been in the forefront of political discussion this year. From the U.S. Supreme Court’s recent decision on judicial recusal to the judicial reform bills moving through the Pennsylvania Senate and House, public attention has tuned in to methods of judicial selection and the influence of money on an elected judiciary.
Judicial Elections Across the States
Of the many methods for choosing judges around this country, partisan judicial elections fall farthest from meeting the ideal of a neutral and independent judiciary. The oft-cited problem with judicial election is the influence of campaign money. Relying on campaign contributions may leave judges feeling indebted to individuals and interest groups, or at least may create that perception among the public. Even the perception of bias threatens the judiciary, which derives its authority entirely from the public’s trust in its fair and impartial decision making.
Underscoring this concern is a recent study by legal researchers from Utah State University and the University of Pittsburgh1 that found a strong relationship between campaign contributions and judicial decisions. The study focused on Michigan2 and Texas, two states that, like Pennsylvania, have partisan elections, and Nevada, which has non-partisan judicial elections. The study analyzed attorney campaign contributions (which make up the largest percentage of judicial campaign contributions) and voting outcomes in the each state’s supreme courts for the 2005 term. Controlling for other variables such as ideology, the researchers found that a mere $2,000 contribution from a conservative or liberal attorney, in the aggregate, shifted the decision making of the judge toward the position of the contributor. In Nevada, with its non-partisan elections, there was no correlation found between donations and decisions.
The influence of campaign money on the vote of a state Supreme Court justice was the focus of the U.S. Supreme Court’s recent decision in Caperton v. Massey. In 2002 a West Virginia jury found Massey liable for fraud in its business transactions, awarding Caperton $50 million in damages. Massey’s CEO, Don L. Blankenship, vowed the company would appeal. In 2004 before the appeal Blankenship made significant donations to contender Brent D. Benjamin against incumbent Justice Warren McGraw in the race for West Virginia Supreme Court of Appeals. Blankenship’s direct and indirect contributions of nearly $3 million exceeded 60% of the total expenditures made in support of Benjamin’s election and dwarfed those made to the incumbent McGraw.
Benjamin won and was sworn in as a justice to the Supreme Court of Appeals of West Virginia in 2005. In 2006, before and after Massey filed its appeal, Benjamin refused repeated requests to recuse himself from the case. Twice thereafter, Benjamin cast the majority vote in favor of overturning the verdict against Massey. Caperton appealed to the U.S. Supreme Court, which this June held that Justice Benjamin’s failure to recuse himself violated Caperton’s right to due process of law in regard to a fair and impartial hearing. The case, not surprisingly, has many states rethinking their contribution limits for judicial ethics and rules regarding judicial recusal.
Reform Movement in Pennsylvania
Of the 38 states that elect some of their judges, Pennsylvania is one of only six that, like West Virginia, elect judges at every level, from the district court to state Supreme Court. Currently, to run for a judicial position, one simply must meet age and residency requirements and be a Pennsylvania lawyer. There are no requirements for legal experience, knowledge, community service, or having a reputation for being fair and impartial. Candidates are forced to run with a party affiliation, which, as noted above, has been seen in other states to influence judicial decision making. Furthermore, the amount of campaign contributions is increasing each year. In 2007 four candidates for two open seats on the Pennsylvania Supreme Court spent $7.85 million, shattering previous records for judicial elections in this state.3
There is a reform movement in Pennsylvania; a coalition of organizations, headed by Pennsylvanians for Modern Courts, advocating the move from partisan elections to merit selection for state appellate courts. Senators Jane Earll (R) and Daylin Leach (D) and Representatives Matthew Smith (D) and Will Gabig (R) are the prime sponsors of legislation recently introduced to adopt merit selection for our state appellate courts. Governor Rendell also supports the change. The merit selection proposed by these bills would create a four-step judicial selection process: (1) screening and evaluation by a nominating commission; (2) nomination by the governor of a candidate from the commission’s list; (3) confirmation by the senate; and (4) after a number of years on the bench, retention in a nonpartisan yes-no vote by the public. Despite the bipartisan support, amending the constitution is no easy task. These bills must pass both houses in the 2009-2010 and 2010-2011 legislative sessions and then pass a statewide referendum.4
Status Quo in Delaware County
Until the adoption of merit selection, we in Delaware County are in the unenviable position of having a one-party dominated judiciary. The Republicans hold every seat on the Court of Common Pleas. It is a common view that no matter which party is in the majority, a partisan monopoly on a branch of government does not often lead to sound results. It is imperative that as we enter another election cycle, we pay extreme attention to the qualifications of those judges running for open seats and those seeking retention. We must be vigilant on informing ourselves who their campaign donors are and whose interests they represent.5 Without an alternative vetting process, it is up to us as voters to determine whether our judges truly embody our ideal of fairness and impartiality.
