By Maida Milone
When you believe something makes great good sense, you imagine the path to success being a straight line to the goal. That’s rarely, if ever, the case, of course. The natural confidence you feel when tackling a project can cause a trick of the mind, a belief that others will immediately see the logic of your position and share your passion for it. The disillusionment that follows their failure to adopt your plan wholeheartedly or to be cajoled into following you regardless of their questions or concerns can create rifts. Those rifts lead to paralyzingly partisanship or raised voices or stalemates, but never to consensus.
Coalition building is hard work, especially when what you want to accomplish has no natural constituency. It requires active listening, not that pale substitute of making eye contact while you are formulating your next point regardless of whether it is responsive to what the speaker has to say or not. No one changes their mind or finds their way to a different perspective if they are not heard.
Coalition building requires respect for those who disagree with you, even if they seem stubborn or unwilling to hear your arguments. They might have a good point or expose a flaw in your thinking that your enthusiasm blinds you from seeing. And while the experience of cognitive dissonance—that knot in your stomach that follows your recognition that someone else might have a good point and that you just might have to rethink or revise something in your plan—is so very hard to manage, it is an essential part of getting the job done well.
By Maida Milone and Julia Jones
Questions about judicial independence and accountability seem to be on just about everyone’s mind these days. Our hope for this article is to contribute to this critical national dialogue by taking a hard look at the processes by which judicial officers are selected and sharing some thoughts about how best to ensure the legitimacy of those selection processes. In particular, we examine here how “appointive systems” function and suggest ways in which they might bolster public confidence in their choices.
A word about us. Judicial selection systems are of particular interest to us. We are both associated with Pennsylvanians for Modern Courts (PMC). In the 1980s, public confidence in the Pennsylvania judiciary sank to an all-time low following a series of public judicial scandals. To restore citizens’ faith in the courts, then-Superior Court Judge Phyllis W. Beck joined with other respected civic leaders to form PMC. Established as a non-partisan, nonprofit organization dedicated to promoting judicial ethics, PMC has functioned as Pennsylvania’s only official “court watchdog” for nearly 30 years.
One of PMC’s core missions is merit selection reform, including amending Pennsylvania’s constitution to establish a meritbased appointive process for selecting its appellate judges and justices. To develop a model for a proposed appointive system for use in Pennsylvania, we surveyed a variety of appointive systems from across the country. We draw on that knowledge base here.
In this article, we first examine the perils of influence-seeking money in judicial elections in Pennsylvania and nationwide. Second, we briefly sketch various approaches to appointive judicial selection systems in use throughout the nation. Third, we review Delaware’s judicial appointment process and compare it with the model we have developed for meritbased selection of appellate judges and justices in Pennsylvania. Fourth, we take a look at some of the criticisms that have been leveled against merit selection processes. Finally, we share some thoughts on best practices for implementing a merit selection system to ensure public confidence in the quality and independence of jurists seated through that process.
Big Money’s Influence in Judicial Elections
To one extent or another, Pennsylvania has relied upon an elected judiciary since 1850. Today, even the most qualified judicial candidates for statewide appellate judgeships are dependent on campaign contributions from individuals and special interest groups with business before the courts. This dependency creates an appearance of impropriety that ultimately undermines public confidence in Pennsylvania’s courts and potentially threatens judicial independence. As of 2001, 90 percent of voters nationwide believed that special interest groups attempt to shape policy by contributing to judicial campaigns. Eighty percent of judges reported having the same concerns. As one Texas judge memorably said, calling judicial electoral systems “‘imperfect’ is a G-rated description,” and noted that he and every member of his court “aggressively” favors replacing them Recognizing that judicial elections would also eliminate the need for aspiring judges to fundraise, PMC has been a longtime supporter of merit selection reform.
As recently as November 7, 2017, Pennsylvanians voted to retain two sitting Supreme Court Justices and elected one for a 10-year term, all of whom were required to raise some amount of money in order to be competitive candidates. One of the candidates for the open seat on the bench raised significant dollars from an interest group that were used to fuel a last-minute television ad blitz against the candidate’s opponent that some people viewed as unfairly slanted. This election, not unlike others in the past, resulted in candidates who were deemed “unqualified” for the bench by the Commonwealth’s bar associations defeating candidates who were deemed “highly qualified.”
According to the Brennan Center for Justice, a nonpartisan nonprofit that tracks court issues, Pennsylvania’s 2015 Supreme Court election “cost” nearly $16 million dollars, including $12 million in television spending — a form of advertising that often disseminates negative or inflammatory information about judicial candidates and their past decisions. Moreover, voters usually had no idea who was paying for this advertising. The Center found that only 3 percent of the organizations that funded television spending in the race did so transparently — the identities of most donors were undisclosed.
State Farm agreed to pay $250 million on the brink of a trial to customers who claimed the company tried to rig the Illinois justice system to wipe out a $1 billion jury verdict from 19 years ago.
The customers were seeking as much as $8.5 billion in damages in a civil racketeering trial that was set to start Tuesday in federal court in East St. Louis, Illinois. A judge granted preliminary approval to the accord and set a final fairness hearing for December.
The biggest U.S. auto insurer was accused in the case of leading an effort to recruit a judge friendly to its cause for the Illinois Supreme Court, secretly funding Judge LLoyd Karmeier’s 2004 election campaign by funneling money through advocacy groups that didn’t disclose donors. Under the federal Racketeer Influenced and Corrupt Organizations Act, any damages would have been tripled.
The company denied any wrongdoing in settling the claim. The settlement “is made simply to bring an end to the entire litigation,” and “to avoid protracted litigation and appeals that could continue for several more years,” said company spokesman Jim Camoriano.
State Farm “has consistently denied participating in a RICO scheme and to this day denies any role in electing Judge Karmeier,” Bob Clifford, attorney for the plaintiffs, said in an interview Tuesday. “Now they agree to pay a quarter of a billion dollars, and I think that speaks for itself.”
Click here to read more
Elected judges and judicial independence have always been an awkward fit. “Politicians are expected to be appropriately responsive to the preferences of their supporters,” as U.S. Supreme Court Chief Justice John Roberts has observed. By contrast, judges “must ‘observe the utmost fairness,’ striving to be ‘perfectly and completely independent.’”
Put simply, judges are supposed to put aside their political or partisan preferences and decide cases based on their understanding of what the law requires—even if it’s unpopular. That is a lot to ask of anyone—but election pressures can make that job even harder.
Thirty-eight states use elections for their state high courts. Across the country, these elections have become increasingly expensive and politicized. Today, one-third of all sitting justices on elected courts have run in a million-dollar election, as documented in a recent report by the Brennan Center for Justice and National Institute on Money in State Politics. The 2015-16 election cycle had a record number of big-money supreme court races.
Click here to read more from the ABA Journal.
In January our Supreme Court drew our congressional districts. In February the U.S. Supreme Court told the General Assembly that our court could do that. In March and April our Senate held hearings on how to design a citizens' independent districting commission so neither politicians nor courts would draw legislative districts. A compromise Senate Bill 22 was offered on May 22, which sailed through the subcommittees and was ready to be passed.
On June 12 a surprise rider was introduced which changed the structure of our appellate court system. All superior, commonwealth and Supreme Court justices would now be elected from districts designed by the citizens' commission. Appellate courts would no longer be judicial, they would be representative. The basic principle that, especially appellate courts, should not be political bodies was distorted.
The Founding Fathers designed the House of Lords and the appellate courts to be above the political fray. The rider to SB22 must be defeated. We must retain an objective, professional appellate court system.
Click here to read more from the Pittsburgh Tribune-Review.
Pennsylvania GOP leaders are calling on the Supreme Court to overturn a state court ruling that declared the state's congressional map an improper gerrymander, scuttling its congressional districts earlier this year in favor of Democrats.
State House Speaker Mike Turzai and Senate President Pro Tempore, the top Republican lawmakers in the state legislature, filed their appeal Thursday afternoon, marking the latest attempt to overturn the state court's decision after the Supreme Court denied two emergency requests to intervene earlier this year.
Republicans have argued that the state court did not give the legislature enough time to forge a compromise map with Democratic Gov. Tom Wolf after it ruled the map unconstitutional in January. When the two sides couldn't reach a compromise, the state Supreme Court redrew the map.
Click here to read more from The Hill.
(AP) After the Pennsylvania Supreme Court 's Democratic majority threw out the Republican-drawn map of congressional districts as an unconstitutional gerrymander, Republicans raised talk of impeaching Democratic justices.
Calls for impeachment even came from senior Republican Party officials.
That talk receded, but Republicans have brought forward another plan that could limit the lifespan of the court's Democratic majority: changing the state's constitution to elect appellate court judges in districts, rather than in statewide elections.
Whether to move the idea farther down the path of amending the constitution—and dramatically reorganize a separate branch of government—is before the state Legislature in the final days of June, as Democratic Gov. Tom Wolf and legislative leaders are trying to assemble a new fiscal-year budget.
It escaped nobody's attention that Republicans took a shot at remaking the court within months of the gerrymandering decision that had left them worried about how the court might rule in the future on a pending public school-funding case.
Click here to read more from the Chicago Tribune.
Supporters of a Republican proposal to create judicial districts for Pennsylvania's highest courts say it would ensure all areas of the state are represented on the benches and reduce the impact of money and special interests on the judiciary.
Detractors call the proposal retaliation for the state Supreme Court's January ruling that the congressional district map drawn in 2011 was unconstitutionally gerrymandered.
Thirteen of the state's 18 congressional districts are represented by Republicans, while the state's highest court has a Democratic majority. GOP lawmakers discussed impeaching the Democratic justices who ruled against the old map.
The proposal to create judicial districts was added to Senate Bill 22, which would put citizens in charge of congressional and legislative redistricting. State Sen. Ryan Aument, R-Lancaster, introduced the amendment shortly before Republicans passed the bill without any Democratic support. It now goes to the House.
Click here to read more from the Pittsburgh Tribune-Review.
The amount of individual stock held in public companies by U.S. Supreme Court justices declined once again in 2017, but three members of the high court’s bench still combine to hold shares in more than 40 entities, according to an analysis of financial disclosures released Thursday by watchdog group Fix the Court.
The financial documents revealed Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito to be the only justices to own stock, although the trio did sell off some or all of their holdings in a number of companies. As of the end of 2017, the justices held stock in 44 public companies, down from 49 the year before, and a marked decrease from 60 companies in 2015, Fix the Court said.
Justice Roberts sold up to $50,000 in Hill-Rom Holdings Inc. and up to $15,000 each in Hillenbrand Inc. and Nokia, while Justice Breyer sold up to $100,000 in Cisco Systems Inc. and and Justice Alito unloaded the same amount of C.R. Bard. Justice Breyer also dumped as much as $50,000 in Air Products & Chemical Inc. and $15,000 in Versum Materials, while Justice Alito gave up as much as $15,000 in Schlumberger Ltd.
Fix the Court Executive Director Gabe Roth told Law360 on Friday that much of the divestment came as a result of cases involving the companies arriving on the Supreme Court’s docket. This includes the sale of Justice Alito’s stake in Schlumberger, which he sold following his recusal in the patent infringement case WesternGeco v. ION Geophysical. WesternGeco is a subsidiary of Schlumberger, and the sale allowed Justice Alito to reverse his recusal.
Roth said he believes the sell-offs by the justices are a positive sign while the court continues to have what he calls a “robust business docket.”
“I wish it were a little less protracted, but I think the trend will continue and I’m pleased that it’s moving in that direction,” Roth said.
Click here to read more at Law360.
The successful recall of Aaron Persky caps an emotional and intense two-year campaign for his ouster led by opponents appalled at the California judge’s lenient sentencing of sexual assault convict Brock Turner. It also marks a historic and rare event: The last time a sitting judge in California was recalled was more than 80 years ago, in 1932.
The recall campaign—and its results—have been viewed by many in the legal establishment with trepidation about the signal it sends regarding judicial independence. Legal experts and outside observers, though, seem to agree that the circumstances surrounding Persky were unique and not likely to be easily replicated.
At the same time, some say the outcome gives future judicial opponents a new measure of confidence about the feasibility of ousting a judge through a recall or other election process and provides would-be recall campaign leaders a blueprint of sorts to follow.
“It’s hard to meet all the requirements [of a recall]. It’s hard to get all the petitions signed, and then keep the anger level up,” said Charles Geyh, a professor at the Maurer School of Law at Indiana University and author of a forthcoming book about judicial elections. Geyh said the Persky recall was the “one-in-a-million” case where campaigners were successful.
“This may embolden angry locals to get judges recalled in the near term,” Geyh added.
A minority of states in the U.S. allow judicial recalls. Only nine have such a mechanism on the books, and four of them require certain facts be alleged or proven in order for the process to be triggered.
Click here to read more from Law.com.
What you'll find
PMC press releases, statements, and news coverage of our work, in addition to the latest news on Pennsylvania's courts, judicial elections, ethics, discipline and more.
Pennsylvanians for Modern Courts is a statewide nonprofit, nonpartisan organization dedicated to ensuring that all Pennsylvanians can come to our courts with confidence that they will be heard by qualified, fair, and impartial judges
1500 John F. Kennedy Blvd., 2 Penn Center, Suite 1140, Philadelphia, PA 19102