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The governor supports it. Several legislative committee chairs support it. The statewide chairs of both major parties reportedly support it. So whose fault will it be if we don’t get merit selection this time around?

Nobody understands better than the legal community the importance of merit selection. Particularly at the appellate level, nobody should be a louder or more vocal or more active supporter of merit selection than we, the users of the system.

If we want to be able to assure our clients that their cases are being resolved fairly, with nothing but the law and justice as a consideration; if we want our clients to feel they have gotten a fair shake, with nothing but even-handed standards deciding their cases; if we want the public to respect the integrity of our courts; then it is incumbent on us, as lawyers, to do all that we can to make it happen.

There is nothing to commend the current system. Oh, sure, we know the theory – popular, partisan election of judges assures that judges are responsive to the people, represent a diverse cross-section of our population, and understand real people’s real problems. Maybe that theory once was true. It no longer is, particularly with respect to judges elected at the state level. And the reality is a major disappointment to anyone who really cares about the integrity of the third branch of government.

How much do we have to read about the influence of money, special interests and party politics, not to mention regional affiliation, regional voter turnout and (our favorite) ballot position, before we say enough is enough? How many appellate decisions that leave us scratching our heads do we have to endure before we say there must be a better way, and then do something to make it happen?

Will merit selection take politics out of the courts? No, nor should it. Is there anything about the current system (other than blind luck) that leads to the selection of high quality appellate judges? Not much.

Sen. Jane Earll (R – Erie), Sen. Anthony Williams (D – Philadelphia), Rep. David Steil (R – Bucks) and Rep. Josh Shapiro (D – Montgomery) are poised to introduce, in their respective chambers, a thoughtful, balanced, proposal to amend the constitution to provide for appointment of appellate judges by the governor from lists provided by a merit selection panel, with appointments subject to legislative confirmation and subsequent retention elections.

Strict time limits are imposed on confirmation, to avoid confirmation bottlenecks or paralysis. The selection panel is designed to represent a wide and bipartisan cross-section of views and will include lawyers and non-lawyers, mandatory regional diversity and representatives of law school deans, labor unions, business groups and civic organizations.

The governor says he supports the proposal, and it has bipartisan support. It’s now time for the legal community to speak out.

We cannot expect our elected representatives – products of the partisan system that has given us an elected judiciary – to champion the cause of merit selection on their own. They deserve our support. We call on leaders of the bar – and all of its members -to take up the cause, to speak up, to speak out, to call your representatives and to let Harrisburg know how important it is to the interests of all citizens to have a judiciary that all can respect and all can trust and that all can know are deciding cases to the best of their abilities, without favor, partisanship or any interest but the merits; and that the best way to get there is merit selection.

Commentaries appearing from the Editorial Board are produced by The Legal Intelligencer’s Editorial Board. The opinions are voted on and passed by a majority of the members of the board. They do not necessarily reflect the opinions of every member of the board, nor of the newspaper.

The Editorial Board of The Legal Intelligencer is composed of members of the legal profession. They serve voluntarily and are independent of The Legal Intelligencer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.

The editorial board members are:

Chairman – Jeremy D. Mishkin
Gene D. Cohen
Albert S. Dandridge III
Francis P. Devine III
Richard Feder
Shira J. Goodman
Gregory Harvey
Jeffrey P. Lewis
Nathaniel Metz
Sunah Park
Albert P. Parker
Daniel Siegel
Louis Sirico
John Soroko
Peter Vaira
Alan L. Yatvin
Michele D. Hangley
Raymond M. Williams

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