“In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.” – Sandra Day O’Connor, former United States Supreme Court Justice
Last Tuesday, at the time of the primary in Pennsylvania, campaign fundraising for the Pennsylvania Supreme Court race had already surpassed $5 million. The leading fundraiser, Judge Kevin Dougherty of the Philadelphia Common Pleas Court, has raised nearly $1.5 million alone, and spent over $1 million on television advertising. At this point in the 2009 race for Pennsylvania Supreme Court, no candidate had raised more than $250,000. This year, six out of twelve candidates raised at least that much.
Advertisements on broadcast television alone (not including cable television or radio) totaled over $2.4 million as of May 15th, according to the FCC. Bert Brandenburg, executive director of Justice at Stake, a national partner group of Pennsylvanians for Modern Courts, said “The spectacle of so much spending, on top of recent scandals affecting the Court, ought to put insulating judges from money and political pressure at the top of Pennsylvania’s agenda.”
More and more, judges and their campaigns are raising money from individuals who may appear before them in court, including plaintiff’s lawyers or business interests. Outside spending by special interest groups in judicial elections is on the rise since the Supreme Court’s decision in Citizens United.
When the United States Supreme Court recently upheld Florida’s ban on direct solicitation of campaign donations by judges and judicial candidates, it recognized that public confidence in the judiciary was at stake. Even if donated funds do not actually result in favoritism towards the donor in the courtroom, the mere perception of this risk harms public faith in our judiciary. A 2013 Brennan Center poll found that 87% of votersbelieve that spending in judicial elections has either “some” or “a great deal” of influence over judges’ decisions.
Like Florida, Pennsylvania bans judges from directly soliciting campaign contributions during an election cycle. However, judges are free to set up campaign committees that fundraise on their behalf. In a judicial election, voters typically don’t know much about the individuals on the ballot. This requires candidates to raise and spend large amounts of money to increase their public profile. But a judge, tasked with impartially upholding the law based on the facts of each case, should be free from the political pressures of fundraising and from any partisan influences.
This fall, there are an unprecedented three Supreme Court seats on the line in Pennsylvania, as well as seats on the statewide Superior and Commonwealth Courts and a number of county-wide and court races. As November approaches, one can expect millions more in fundraising, negative and partisan attack ads, increased outside and special interest group participation, and constant pressure on lawyers to donate to the candidates running. (In the Supreme Court race, lawyers are reporting a pressure to donate to the candidates. This is because all six candidates are current judges, and they will still be on the bench somewhere in the state, even if they lose). In addition, there will be pressure on those judges elected to reconcile how they will address the perception of bias that arises when campaign donors appear in front of them in the courtroom.
Many of the candidates in the 2015 primary for Pennsylvania Supreme Court, Superior Court, and Commonwealth Court would likely be excellent nominations in a merit selection system. However, when these same individuals are forced to act like politicians by soliciting campaign donations through their committees, advertising, and seeking out party endorsements to increase their odds of being elected, it undermines the judge’s role as impartial arbiter in our Constitutional system.
Right now in the Pennsylvania House of Representatives, there is a bipartisan bill to begin the process of amending the state constitution to implement a hybrid selection of appointment and retention election of judges. Pennsylvania should get money out of the judicial selection arena. The best way to do this is to implement a non-partisan merit selection system to ensure there are qualified and diverse individuals on the bench, free from the political pressures of a politician.
