That’s how much candidates and interested groups have spent to influence the race for three seats on the Pennsylvania Supreme Court, according to Justice At Stake, a watchdog group which tracks state judicial races. And that number is only likely to grow as it is based on records that have already been filed in this election, which is being held Tuesday. When all the data is available, it is likely that far more will have been spent.
Even with incomplete numbers, however, Justice At Stake says that the Pennsylvania race “has broken the previous documented national spending record for any state Supreme Court race.”
Three seats are open in part because Pennsylvania’s highest court has behaved quite injudiciously in recent years. One seat is vacant due to the resignation of former Justice Joan Orie Melvin, a Republican convicted of campaign corruption charges in 2013. Another justice, Democrat Seamus McCaffery, retired due to a scandal where he “forwarded sexually explicit emails containing photos of naked women and graphic sex videos to a state worker who forwarded them to other state workers.”
Former Chief Justice Ronald Castille, a Republican, also retired from the Court in December of 2014. Though he did not retire amidst scandal — he reached the mandatory retirement age of 70 — the Supreme Court of the United States is currently reviewing Castille’s refusal to recuse himself from a death penalty case involving a man that Castille helped prosecute. Castille was the district attorney who supervised the death row inmate’s prosecutors, and he approved his office’s decision to seek the death penalty and to defend that sentence on appeal.
Meanwhile, a fourth member of the court, Justice Michael Eakin, is also being investigated due to a different scandal involving sexually explicit emails.
A number of former high-ranking jurists have spoken out against elections as a poor way to select competent judges and ensure that those judges are not influenced by campaign donors and other spending. In an candid interview with ThinkProgress, former Montana Supreme Court Justice James Nelson explained how his own reelection race distracted him from the cases he needed to decide.
So I walked into the office the morning after the primary and I told my two clerks “here’s the deal” — I read all the briefs. Every brief that comes up there I read it. The clerks do, usually, the first draft of the opinions, but I work a lot of the opinions — “I said, here’s the deal, for the next ten months, I’m not going to be reading briefs. What you’re going to have to do is read the briefs and prepare a memo for me about what the case is all about. You’re going to be more involved in the opinion writing. I’m gonna go on like nothing has happened, but we’ve gotta — if I want to keep my job and you want to keep yours, this is how it is going to work.”
And that’s what happened, I became a full time politician for ten months.
Meanwhile, voters rarely know enough about judicial candidates’ fitness for the judiciary to cast an informed vote. According to former Chief Justice of Texas Wallace Jefferson, “the voters have no clue about the experience or background of these candidates for office, and so what happens in Texas is that voters increasingly vote based upon partisan affiliation.” Courts, in other words, become more like legislatures — with judges being selected based on the policies they will implement rather than based on their willingness and ability to enforce the law as written.
Worse, Wallace explains, because voters lack enough information to make informed choices in judicial elections, they often choose judges for arbitrary reasons. In 2008 in Harris County, Texas, for example, Wallace observed that “almost all the Republican judges” lost in this Democratic stronghold. The exception was three Democratic candidates who “had an ethnic-sounding name.”
Similarly, in 2012, former Judge John Devine beat incumbent Texas Justice David Medina in a Republican primary. Now-Justice Devine reportedly explained the rationale behind his campaign in ten words — “I can beat a guy with a Mexican last name.”
Legislation seeking to amend Pennsylvania’s constitution to choose judges through a merit selection process has passed the state’s House Judiciary Committee.