The Philadelphia Bar Association’s Judicial Commission has been faulted in some quarters for a lack of influence on judicial races and in other quarters for perceived unfairness in the recommendations the commission makes over who should be elected or retained as a judge.
But despite any limitations to the judicial commission’s sway in judicial elections, a volunteer bar association task force charged with reviewing the commission’s functions has concluded that the commission has an important role to play in the elective, political process out of which the city’s judges are selected.
Chancellor Mike Pratt convened a task force under his leadership of the bar association this year to consider if the judicial commission should continue to exist — and if it should exist, what changes needed to be made to the commission’s functioning.
The Legal interviewed 11 of the task force’s 16 members, and all of those interviewed said after reviewing the judicial commission’s process they believe that the judicial commission conducts fair work that provides the only in-depth evaluation of the quality of the judicial candidates seeking the bench.
Considering a political process that hews to the influence of ward leaders and to political consultants, Pratt said, the task force concluded there are political elements that the commission can’t control regarding the election of judges. But the task force also concluded the commission’s role is one of utility, not futility, he said.
“We’re the only game in town in terms of a process that evaluates each judge candidate thoroughly and fairly,” Pratt said.
Pratt said he wanted to rebut the perception that some segments of the bar might harbor a “vendetta” against specific judges, which might unfairly affect the judicial commission’s objectivity. Pratt said he also hoped the task force’s work would make the judicial commission more appealing to the judicial candidates, city’s ward leaders and political consultants.
The commission’s membership included Pratt; Chancellor-elect Sayde Ladov; Leigh Skipper, the new chief federal defender, chairman of the judicial commission and co-chairman of the task force; William Fedullo, vice-chairman of the judicial commission and co-chairman of the task force; Judge C. Darnell Jones II, formerly president judge of the Philadelphia Common Pleas Court and now on the federal Eastern District Court bench; Philadelphia Municipal Court President Judge Louis J. Presenza; Shelley R. Smith, Philadelphia’s city solicitor and a former chairwoman of the commission; Daniel-Paul Alva, of Alva & Azzarano; Nelson A. Diaz, of counsel with Cozen O’Connor and a former Philadelphia Common Pleas judge; Bruce Franzel, of Oxenburg & Franzel; Lynn Marks, director of Pennsylvanians for Modern Courts; Abraham C. Reich, of Fox Rothschild and a former bar association chancellor; Louis Rulli, a University of Pennsylvania Law School professor; Bernard W. Smalley, of Anapol Schwartz Weiss Cohan Feldman & Smalley; Denise Smyler, of Smyler & Gentile; and Stella Tsai, of Archer & Greiner.
Pratt said the task force included both leaders of the bar association and those with political savvy.
“And I mean political with a capital ‘P,’” Pratt said.
The task force even considered whether the commission should be axed.
No Sacred Cows
“Nothing was considered a sacred cow,” Ladov said.
Presenza, who has been a member of the commission for a decade, said he was happy to participate in a task force taking a step-by-step review of the judicial commission in order to address the concern of some members of the judiciary and some members of the bar that the commission is unfair.
The commission’s process is “extremely important to judges personally but also to those who appear before us be they attorneys, litigants,” Presenza said. “We want to make this as fair and as useful as possible.”
Reich said the commission benefits the public because there are candidates who decide not to run because the commission does not recommend them.
“The judicial commission is alive and well in Philadelphia,” Reich said. “It performs a valuable function. Like any other body that evaluates and is critical of other factions in the legal community, you need to look in the mirror and re-examine yourself and improve. That’s what happened here.”
Skipper said in January before the task force started meeting he hoped the task force’s work would improve ties to the community and address the false impression the commission is “just a body of elite lawyers not listening to the public.”
Skipper said in an interview this month that the task force wrestled with that perception. The task force concluded that the commission’s membership is diverse because lawyer members are pulled from many of the association’s divisions and sections under the association’s bylaws.
He said the commission didn’t want to have a rule regarding the public appointments made by the chancellor. But he said the task force hopes that every future chancellor will make it a goal to have their public appointees to the commission reflect the racial and geographic diversity of the Philadelphia’s population.
“We are comprised of a diversified body of lawyers of all backgrounds, including races and genders, and also have nonlawyers as sitting members,” Skipper said.
Fedullo said the task force’s work was important to ensure that the commission’s decisions to recommend and not recommend some judicial candidates are spot on.
Fedullo said he also hopes that the bar association will expand its publicity. He noted Executive Director Kenneth Shear has gotten good publicity for the judicial commission’s results in the past.
Tsai, who is a past member of the commission, said the task force concluded that the commission’s recommendations are a worthwhile product to share with the public. The recommendations are based upon the viewpoint of lawyers who have insight into the qualities and competencies that make a good judge and are not based upon political whim, Tsai said.
“Because it’s such a diverse body, it tends to be a pretty objective view and until we have merit selection, we need some expertise to inform the electorate,” Tsai said.
Alva, who is a past member of the commission, said the task force considered whether the commission should continue to exist because its recommendations seem to have a poor following amid the voting public and some political leaders in deciding which judicial candidates to back.
“We didn’t want to sit around and congratulate ourselves,” Alva said. “The bar association exerts a tremendous amount of energy and time in this process and the question is whether or not it’s time and money well-spent.”
Alva said the task force hoped to answer the perennial critique that the bar association is full of lawyers who live outside of Philadelphia County and don’t know Philadelphia judges and the needs of the city’s citizens. That criticism might still be leveled by politicos, but Alva said the task force was able to satisfy itself that the commission is diverse and representative.
Rulli, who led a subcommittee that examined the commission’s polling of bar members about their views of judges up for retention, said that the subcommittee concluded that the “plebiscite” functions well. A statistical analysis showed a strong correlation between the recent plebiscites, which are based on attorneys’ first-hand experiences and impressions of judges and the commission’s ratings, Rulli said.
“That was comforting to know,” Rulli added.
The results of the plebiscite are often used by the commission to help determine when it will undertake a more in-depth review of retention candidates, Skipper said. Reviews are always undertaken for judicial candidates running in open races. The applications of judicial candidates are always checked for both retention and open race candidates.
The response rate to the poll is healthy with about 1,400 to 1,750 respondents, said Rulli, who chaired the commission twice in the past and does the training of the commission’s reviewers.
The number of responses dropped in 2007 when the commission used electronic balloting for the first time, Rulli said. The subcommittee recommended that electronic balloting continue but that attorneys who are less comfortable with electronic balloting be allowed to file paper ballots circulated in the Philadelphia Bar Reporter .
The subcommittee also examined the questions that are asked on the plebiscite. Rulli said they concluded the plebiscite asked the right questions, but background information should be solicited from attorneys responding to the poll about how long they’ve been practicing and what area of law they’ve been practicing.
The subcommittee also recommended that observation teams of experienced senior lawyers could be used as part of the commission’s candidate reviews.
Many senior lawyers are tremendously talented and have the experience to be able to assess if judges are acting in a way that brings dignity to the court or not, Fedullo said.
Both Skipper and Presenza said Rulli did a phenomenal job of leading the subcommittee.
The task force also concluded that reviewers must speak with enough people when carrying out their reviews, including consultations with opposing counsel for lawyers running for judge and consultations with judicial team leaders and administrative, supervising or president judges regarding judicial retention candidates.
Ladov, Marks and Skipper said that the task force believes reviews must be done early enough in the process so the recommendations of the commission are available to ward leaders and other political leaders before judicial primaries.
The task force also debated if the commission should publish reasons along with its ratings and if it should rate appellate judge candidates hailing from Philadelphia. The task force decided against both.
The task force decided against publishing reasons for reviews because it would violate the promise of confidentiality given to the candidate being rated and to the people who give information during reviews; information may be disclosed to reviewers such as information about a grand jury investigation that can’t be disclosed unless confidentiality is guaranteed; and because publishing reasons might bring an increased risk of liability to the bar association, according to the task force’s summary of its recommendations.
While Marks understood the reasons the task force did not decide to publish reasons, she said that she thinks civic organizations and newspaper editorial boards that defer to the bar ratings want more information about why the bar makes its ratings, especially when the bar association recommends more candidates than there are vacancies on the bench.
Fedullo said he understood both points of view, and Reich was of the mind that reasons should not be published. Other interviewees didn’t want to get into what they termed as a confidential discussion.
Hanging over the task force’s work was the hope that the city’s political leaders might once again back only the candidates that the commission recommends.
While the task force’s work focused on an interior review of the commission, interviewees said they answered for themselves in the negative the charge that the commission doesn’t conduct a fair process.
Pratt said the bar association should pursue meetings in the future with political leaders and ward leaders to promote the judicial commission’s recommendations in their choices in judicial races. Ladov said that it’s a perennial issue for the bar association that every chancellor shoulders.
Larry Ceisler, a veteran local political consultant, said there are still many ward leaders who won’t back judicial candidates who haven’t been recommended by the commission, but the city Democratic Party has many different constituencies to satisfy and sometimes individual ward leaders won’t follow the recommendations.
“It’s still very difficult for a candidate found not recommended to win. It happens. There was a time when Democratic City Committee did respect the bar association’s recommendations,” Ceisler said. •