It’s tempting to end the year on a bracingly upbeat note — yes! Bill Cosby has finally done the perp walk! — but I’d be remiss if I failed to mention one of the year’s most downbeat political stats. Especially since it was tallied in Pennsylvania.
Yes, folks, Pennsylvania made history in November, by hosting the most expensive state Supreme Court race in the nation – breaking all previous records.
More than $16 million was spent on the ads and campaigns for the three open seats, thanks to the generous largesse of self-interested trial lawyers, businesses, and unions. It just so happens that the Democrats swept all three seats, gaining a 5-2 edge on the state’s top bench, but nobody should be celebrating a process that intrinsically codifies corruption.
The judiciary is supposed to be an independent branch of government. Electing high court judges — forcing them to campaign, allowing them to accept donations from people who may well have a direct interest in future cases – is sleaze incarnate. Only eight states, including Pennsylvania, pick their top judges in partisan elections, and special interests keep ratcheting up their money. That $16-million Keystone tab was no surprise; according to the NYU Brennan Center and the National Institute on Money in State Politics, total national spending on state supreme court races was 250 percent higher in the first decade of this century, when compared to the ’90s.
A big chunk of Pennsylvania’s $16-million tab was supplied by out-of-state groups that wage ideological war on the air. Various high court candidates were peppered with ads that painted them as purportedly soft on crime. (Lower-court judge Michael George “routinely handed out lenient sentences” and “failed to protect women and children.” Kevin Dougherty, a Philadelphia judge, “shockingly allowed a young girl to be put in the custody of a convicted murderer.”)
This kind of air pollution imperils judicial impartiality. As the American Constitution Society wrote in a 2014 report, “State supreme court justices, already the targets of sensationalist ads labeling them ‘soft on crime,’ are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.” Indeed, the group concluded in a study that “the more TV ads during supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.”
And in 2013, the same watchdog group found “a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters….The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”
This time around, in Pennsylvania, the Democratic candidates were elected to the bench with heavy financial help from trial lawyers and unions. One can reasonably suspect that the new judges will be tempted to rule, more often than not, in favor of those interests. How can you possibly have confidence that such a court can be intellectually independent? This is what happens when you elect judges.
The British-run Economist magazine has acerbically weigh in on this weird American practice: “It’s fine for a politician to make deals with voters, to say, ‘Vote for me and I’ll promise to raise the minimum wage,’ or ‘Vote for me and I’ll cut your taxes.’ But it is an abuse of power for a judge to promise — or even hint — that he will decide future cases on any basis other than the facts and the law.”
There’s no guarantee, of course, that judges who are appointed via merit selection will be the best and the brightest. What we do know, however, is that the Pennsylvania process has given us way too many political hacks. Two years ago, one of the judges was convicted on felony charges of campaign corruption; two others have been outed for sending porno and racist emails. As one observer wrote recently in The Atlantic, “Is it just coincidence that the court is one of the most politicized in the country, and has become so disgraced?”
Currently, a bipartisan coalition of state lawmakers want to amend the Pennsylvania Constitution and replace judicial elections with merit appointments; after serving for four years, the merit appointees would have to campaign for their retention. Nobody should get too excited about this. Reform proposals have been floating around Harrisburg for three decades. Which is too bad, because, as retired U.S. Supreme Court justice Sandra Day O’Connor wrote in 2010, “(without reform) the perception that justice is for sale will undermine the rule of law.”
Yesterday, I referred to the trolls who continue to contest the reality of man-made climate change. Here’s the perfect encapsulation of their mentality (hat tip, Garry Trudeau). A troll goes to the doctor…
Happy Old Year, see you all on the flip side.