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What will the 2007 retention elections bring? Will 2007 be remembered as the year in which record numbers of Pennsylvania judges fail to win retention, or will it be the year in which retention elections return to “normal,” with most judges winning easily and a few who probably deserved to be off the bench losing, or something in between? The answer to that question may well be a front-page headline on Nov. 7, the day after the elections. The public can shape the answer to that question � not just by how it votes but also by focusing on the purpose of the retention process. By educating ourselves about the meaning of retention and about the judges standing for retention, we can ensure that the retention system serves the purpose of giving the public real input in the judicial selection process. Pennsylvania began using retention elections to determine whether a previously elected judge would continue to serve on the bench following a constitutional change in 1969. Following election to an initial term, judges may file to stand for retention in an uncontested, nonpartisan election for successive terms until reaching the age of mandatory retirement. To be retained, a judge must receive at least a 50 percent “yes” vote. Until 2005, retention elections were low-profile elections: turn out was extremely low; judges routinely were retained with about a 70 percent yes vote; no appellate judge or justice had ever failed to win retention, and only one had even faced a serious “vote no” campaign. That all changed in 2005, when Supreme Court Justices Russell Nigro and Sandra Schultz Newman stood for retention following the controversial summer pay raise enacted by the Legislature and signed by Gov. Edward Rendell. Despite all the hype, the 2005 retention election had a very low turnout. Only 18.26 percent of registered Pennsylvania voters voted in Newman’s retention election, and only 17.87 percent voted in Nigro’s retention election. The results, however, were far from typical. Newman was retained by a very narrow margin, receiving only 54 percent of the vote; Nigro failed to win retention, receiving only 49 percent of the vote. He gained the dubious distinction of being the only Pennsylvania appellate court judge ever to lose a retention election. This year, 67 Pennsylvania judges are standing for retention, including a Supreme Court justice, three Superior Court judges and three Commonwealth Court judges. Anti-pay raise activists are urging voters to vote “no” on any judge who took and kept the pay raise � resulting in a call to vote “no” on 66 of the 67 judges standing for retention. (The activists are not calling for a “no” vote on a Superior Court judge who returned her pay raise.) Bar associations, political leaders and others are running counter campaigns, seeking to protect good judges who have been evaluated favorably. Pennsylvanians for Modern Courts (PMC), along with other civic groups, is calling on voters to act responsibly and make retention decisions based on each judge’s individual performance as a judge. Just as Nigro and Newman did in advance of the 2005 elections, many of the judges standing for retention are raising funds to support their retention campaigns. The very idea of a retention campaign was unheard of prior to 2005. Now, Justice Thomas G. Saylor has raised nearly $350,000; former Gov. Tom Ridge is campaigning with Republican judges seeking retention on the appellate courts, and local judges are seeking community support for their retention bids. Retain Retention In light of all this, and coupled with fear that retention elections simply offer the opportunity for judges to be targeted for unpopular opinions, there have been calls to change or even eliminate the retention election process. This would be a serious mistake. Retention elections should remain part of Pennsylvania’s judicial selection system, whether electoral or merit selection. Retention elections guarantee a role for the public in the critically important judicial selection process. While retention elections certainly can provide the opportunity for misguided attacks, they also offer a voice to the people and a real way to assess a judge’s performance as a judge. Certainly, retention elections likely will never again be rubber-stamp affairs. And frankly, they shouldn’t be. But neither should they be referenda on hot-button issues or an outlet for general anger at government officials. The current climate with fundraising and full-blown campaigns is very troubling. Lumping judges together and calling for “no” votes on all of them is an insult to voters seeking to make informed choices. It would be just as irresponsible to walk in uninformed about the judges and vote “yes” on all of them as it would be to vote “no.” Voters’ decisions should be based on information, mature judgment and considered evaluation of each candidate. The retention process offers an opportunity for a real assessment of whether a judge’s service and performance during the prior term merits a return to office. When voting on retention, evaluate the judge’s performance. Consider whether the judge is respected by those who came before him or her, even when the judge ruled against his or her precedcessor. What is the judge’s reputation for fairness and impartiality? Does the judge have the courage to apply the law even if his or her decision may be unpopular? For trial judges, does the judge treat litigants, lawyers, witnesses, jurors and court personnel respectfully? If the right information gets out, if voters can be educated, retention could be a true assessment of how the judge is doing his/her job. Some of this information is available through bar associations’ judicial evaluation commissions. And it is time for Pennsylvania to join other states that have independent governmental commissions that periodically evaluate all judges and publish the results in advance of retention elections. Retention elections offer the opportunity for judges and the public to educate each other. The public can educate the judges about its concerns for fair and impartial courts, for strong courts that will ensure that the constitutional system of checks and balances works, and for efficient and effective courts. And the judges can educate the public about what they do on the bench, how they view the judicial role and what they’ve learned during the preceding term. This type of education and communication is sorely needed. Retention season is a good time to start this communication, but it should be only the beginning. There should be an ongoing conversation between the public and the judiciary, not about specific cases and controversial issues, but about systemic issues and the role of the courts in our system of government. If we have these conversations, perhaps retention elections can begin to fill the role they were meant to play: neither a non-event rubber stamp for another 10 years in office nor a targeted campaign based on specific decisions or more general discontent with government. Retention elections afford crucial opportunities for voters to determine whether the judges on the ballot should continue to serve on the bench. The public should be concerned about who sits on the courts of this commonwealth and whether their service should be extended. This year could be remembered as the year that Pennsylvania retention elections become meaningful � not a thing to be feared or a thing to be ignored. We have an opportunity to achieve this; let’s hope it’s not squandered.

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