Friday, March 2, 2012

Should Judges be Elected? PA House Judiciary Public Hearing on Merit Selection

On March 1, I attended the PA House Judiciary Public Hearing on merit selection on behalf of the Philadelphia Democratic Progressive Caucus. This is something I would never have squeezed into my schedule if I were not retired. Merit selection (an appointive system of choosing judges) is not one of those hot button issues that grab the attention of the public. I probably would not have taken any interest in this issue were it not for my almost three decades as a Democratic committeeperson—a job I enjoy EXCEPT for the task of recommending judicial candidates to my neighbors. It is extraordinarily difficult to get reliable information about judicial candidates and I’m uncomfortable making endorsements when I don’t feel I can personally vouch for these candidates.

Last January, Philadelphia Democratic Progressive Caucus Chair Gloria Gilman organized a meeting of a group of civic/advocacy organizations with representatives of the Philadelphia Bar Association to express our dismay at their recommendation of recently elected Common Pleas Judge Thomas Nocella, who has a well-documented history of ethics violations and other dubious practices. The officers of the Bar assured us they were making changes to their process which should prevent another such occurrence. But given the serious problems with our system of electing judges, an improvement in the Bar Association’s internal process for recommending judicial candidates is not enough.

Our coalition of civic/advocacy organizations has since met with Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts who presented the key features of a proposal (HB 1816) for an appointive system on the appellate level (Supreme, Superior and Commonwealth Courts). They noted that Pennsylvania is one of only six states that elects all judges in partisan elections. The others are Alabama, Louisiana, Texas, West Virginia and Illinois . According to the PCM website, HB 1816 calls for “the creation a 15-member citizens-based Nominating Commission to screen candidates and develop a short list of potential nominees for the governor. Following nomination by the governor and confirmation by the state Senate, a judge would serve an initial term of 4 years and then stand before voters in a nonpartisan retention election. Voters would decide at that point, and every 10 years thereafter, whether the judge should stay on the bench.”

There seems to be some momentum in favor of the bill; however, change will not be easy. Moving to merit selection requires a constitutional amendment. The proposed constitutional amendment (HB -1815) can be read here, and the implementing legislation (HB -1816) here. The legislature must pass the bills in two consecutive sessions and the final decision is made by the voters in a referendum.

Why not include trial courts?

Several members of the House Judiciary Panel asked supporters of merit selection why they were not also advocating for merit selection for local trial courts. Given attorney Walter Philips’ passionate indictment of the Philadelphia Court system, his failure to advocate for inclusion of local courts was especially surprising. Philips described the swearing in ceremony of a man who “very much deserves to be a judge under any system we have of selecting judges.” According to Phillips:

…the gauntlet that he had to go through, which is the same for everybody running for Common Pleas Judge in Philadelphia, is unfathomable. It requires spending huge sums of the candidate's own money, payable to ward leaders and other political operatives, money which is euphemistically known in Philadelphia politics as "street money", and which is used to pay for what is also euphemistically known as "election day expenses." A state grand jury report of a decade ago and a Philadelphia Magazine article a few years back described the amounts spent by a judicial candidate for Common Pleas Court in Philadelphia as running into the hundreds of thousands of dollars.

Presiding at the swearing-in was a Pennsylvania Supreme Court Justice who took pains to recognize all the elected officials present, including ward leaders. One former Councilman and ward leader in particular that he singled out was Leland Beloff, who some years ago received a ten year federal prison sentence for trying to extort $1 million from a Philadelphia developer.

When it came time for the newly elected Common Pleas Judge to give his remarks, he devoted virtually all of his time to thanking those who had helped him get elected. In particular, he recognized a former Congressman and ward leader by the name of Ozzie Myers. Mr. Myers, the Committee may recall, was famously heard on tape in the Abscam bribery investigation saying to an FBI agent posing as an Arab sheik, as he accepted a $50,000 bribe for selling out his public office, "Money talks, bullshit walks", words that were heard literally around the world and hardly put Philadelphia and its politics in a good light...

However, as long as we have a system of electing judges we will always have, and can expect to have, not only the infusion of vast sums of money, but the involvement of those who have gone to jail for violating their public trust, now posing as political operatives, profiting handsomely from the process and being recognized at swearing-ins. To borrow a line from the film Godfather II: "This is the life we have chosen." Well, this is the system Pennsylvania has chosen, so we can hardly complain if convicted felons play a role in it, since there is nothing to prevent them from participating and making money off the candidates who are running for judge.

The public, however, might be understandably upset if they knew how many bright, competent, honest attorneys are deterred from seeking the bench because they know what they have to go through to get there. The public might be doubly upset if they knew that under our system people who have been convicted of serious crimes involving a violation of their public trust play an integral role in how we select our judges. Maybe, just maybe, it's time to change the system.

I’ve quoted Mr. Philips' testimony at length because it was so compelling, one of the highlights of the hearing. It was surprising after this powerful testimony to hear his uncertain reply to the chairman’s question as to why he was not also advocating for merit selection for the local trial courts. He replied that people in other parts of Pennsylvania were not unhappy with their local courts. The representatives of PMC made a similar response when the question was posed to them. Both Philips and the PMC representatives assured the Judiciary committee that they were only advocating for change on the appellate level and had no plans to extend this to the trial courts. I assume they’ve done their research and came to the conclusion that the votes were not there for a bill which included trial courts.

The Opposing Arguments:

Although most of the testimony at the hearing was solidly in favor of both the principle of merit selection and the plan proposed in HB1816, there is considerable opposition out there. The opposing arguments fall into four main categories.

First, opponents argue that the bill will never succeed in its objective of taking money out politics. Supporters concede there is no way to take money completely out of the process but merit selection can prevent money from directly changing hands between trial lawyers and judicial candidates. If they are not independently wealthy, judicial candidates have little choice but to raise money from trial lawyers. The only people (other than the candidates’ friends and relatives) who give to judicial candidates are trial lawyers who might later appear before a judge to whom they had contributed. Judicial candidates are frequently indebted both to trial lawyers and to the Party machine; this hardly inspires confidence in the independence of the judiciary.

Robert Heim from PMC said this is only going to get worse with money unleashed by the Citizens United decision. He stressed the ever-escalating costs of state-wide judicial races, now well into 7 figures. Also according to PMC written testimony, “the magnitude of the problem becomes clear when one realizes how often campaign contributors actually appear before the judges they supported. In 2010 the American Judicature Society studied the 82 civil cases decided by the PA Supreme Court during the 2008 and 2009 sessions. In 60% of those cases, at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one of the justices.”

Matt Berg of Justice at Stake also testified in support of the bill and cited a report written by his organization and the Brennan Center for Justice which documented skyrocketing spending on state Supreme Court elections. Pennsylvania is near the top of the list of the big spenders and “its total spending of 22.7 million dollars from 2000 to 2009 ranks third nationally coming in at number behind only Alabama and Ohio. Berg stated that “many judges often feel trapped in a bad system, forced to raise money from parties who appear before them.”

A second argument is that in a democracy the people should choose their judges. But that does not happen; voters have opted out of the process. In an off-year election when many local judicial candidates are selected, turn-out is often quite low—-between 15% and 20%. However, that figure is the number of people who came out to vote; cut that in half for those who vote in judicial elections. Even in my middle class Mt. Airy neighborhood, with a high percentage of educated voters, about half choose not to participate in judicial races. Committee people get the number of undervotes in each election—-that is, the number of people who did not vote in a particular race. I’ve been checking this for years now and the pattern is consistent. Participation drops off dramatically in the judicial races. One interpretation is that the people are sending a message that they do not want to elect judges.

Proponents of the bill argue that HB1816 gives the people the right to decide if they want to change the way judges are selected. The results of a popular referendum rather than the votes of legislators will determine the ultimate outcome. Also the people will have the final say in retention; although the initial appointment will be made by a nominating committee, the voters will make the decision whether judges should be retained. Unlike the present system in which judges do not come up for retention for ten years, under the proposed merit selection system judges will come up for retention after 4 years. If retained they will then have a ten year term. The bill builds in a relatively short probationary period.

Third, there is the slippery slope argument. If we take away citizens' rights to vote for appellate court judges soon we will be getting rid of elections all together. This was the argument presented by Temple University Law Professor Marina Angel in written testimony: “Why stop at taking away the right to vote for appellate judges? The same arguments can be made by a group called ‘Pennsylvanians for Modern Democracy’ for all elections. Voters don’t know who they are voting for and elections are too expensive, so let’s have the state and the country run by an elite group of the ‘merit-selected.’” This is quite a leap; judges are are different from legislators. As Andy Hoover, Legislative Director of ACLU PA, stated in his written testimony in support of the bill: “Too often, those most in need of protection under the law are not popular with the majority, including religious minorities, criminal defendants; lesbian, gay, bi-sexual, and transgender people and ethnic minorities. Judges must be comfortable ruling on the law and not what will resonate in the next election.” Merit selection can (to a much greater extent than electing judges) insulate judges from the vagaries of popular opinion, thus affording greater protection to minorities.

The fourth argument made by advocates of electing judges is that women and minorities would not fare as well under an appointive system. Philadelphia Bar Association Chancellor-Elect Kathleen Wilkinson contended, however, that “the election of appellate judges can lead to less diversity. Appointive methods are more likely to value diversity... and to seek to nominate diverse judges to state appellate courts.’ (She cited Malia Reddick et al., Examining Diversity on State Courts, 2010.) Also according to PMC testimony, only three women have been elected to the PA Supreme Court and only one person of color has ever been elected to serve a full term on the PA Supreme Court. PMC cites research by the American Judicature Society that “of 340 judges on the highest state courts in the nation, 35 are minorities; 5 were elected while 30 reached the bench through some form of appointive system, including merit selection. Women too have greater success in reaching appellate courses in merit selection states. Of 340 judges on the nation’s highest state courts, 103 are women; 31 were elected, and 72 reached the bench through some form of appointive system.”

Merit selection has the potential to expand the applicant pool: how many well-qualified women and minorities who might make excellent judges have not run for election because they lack the financial resources and/or don’t want to participate in a process riddled with potential conflicts of interest? Advocates of electing judges often say that the electoral process provides an opportunity for a candidate who might never get through an appointive process. No doubt this is true, and this includes some seriously tarnished candidates like Thomas Nocella and perhaps some worthy candidates as well. However, many good candidates who might make excellent judges will not get down into that gutter.

This is going to be a long protracted struggle. Some of the opposition is principled; some is more self interested. Local judicial elections are big money-makers for the Philadelphia Democratic Party; it's not surprising that local party operatives have their own fears of a slippery slope.

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