Pennsylvania remains one of only six states that chooses all of its judges in contested partisan elections. In recent years, these elections have become more expensive and increasingly divisive. Now, one of our state Supreme Court justices has been indicted for alleged illegal political activity that could only happen in an election. Yet Pennsylvania stubbornly clings to a system that doesn’t make sense and causes serious problems for the judiciary and the public.
This year, Pennsylvania came closer than it has in a long time to acting to change how we select appellate judges. There was a productive public hearing on merit selection legislation in March and an extensive House Judiciary Committee debate in June. Although the issue was tabled by a one-vote margin on procedural grounds at the last minute, these were crucial steps on the road to judicial selection reform in Pennsylvania.
This is not a time to stop working for change. The problems with electing judges have only intensified in recent years. Surveys show that the public understands that electing appellate judges doesn’t work and that there must be a better way. A 2010 statewide poll revealed that 93 percent of Pennsylvanians want the opportunity to vote on that very issue. But in lip service to “protecting voters’ rights,” opponents and the legislators they influence have deprived the public of the opportunity to vote on the way we choose appellate judges.
A growing coalition of civic, legal, business, community and religious groups is working for reform. Legislative sponsors remain committed to moving forward.
It is time to focus on the big picture, acknowledge the serious problems inherent in electing judges, and together find a solution. Changing how we choose judges is complicated because the process is written into the Constitution and can only be changed through amendment. Dialogue sometimes breaks down over the details of how a new system would operate. Those details are very important, but these are problems of mechanics, which can and will be resolved.
The next step must focus on achieving consensus about the major problems with judicial elections.
The Money Problem
Judicial elections are big money affairs, especially appellate races. It costs millions of dollars to run for a seat on the Pennsylvania Supreme Court. Most of that money comes from lawyers, law firms, litigants and special interest groups that later appear in court before the justices they helped elect. An American Judicature Society study found that 60 percent of cases before the Pennsylvania Supreme Court involved at least one campaign contributor.
These facts lead to an unsurprising result. Pennsylvanians overwhelmingly believe that campaign contributions influence judicial decision-making: 76 percent believe that judges do not decide cases fairly but instead favor those parties or lawyers who contributed to their campaigns. Regardless of whether this belief is accurate, the fact that it is so pervasive is the problem.
Traditionally, the courts have been the most trusted branch of government. Unfortunately, that trust is fading, as judicial elections and special interest spending have transformed the public image of judges into what former U.S. Supreme Court Justice Sandra Day O’Connor called “politicians in robes.” The only asset the courts possess is the public trust. If that trust is lost, the courts lose the very basis for their power.
Merit selection solves the money problem by getting judges out of the fundraising business. No longer would judges preside over cases involving parties or lawyers who contributed to their campaigns because there would be no campaigns and no contributions.
Elections Focus on the Wrong Attributes
Elections reward skills and talents that are, for the most part, unrelated to whether someone is well-qualified to serve as a judge. Pennsylvanians want judges who are wise, fair, experienced and have a reputation for honesty and ethical behavior. Elections reward the best fundraisers and campaigners and those with strong political connections. Although the two sets of attributes are sometimes found in the same candidate, that is due more to luck than the electoral process.
Merit selection focuses on judicial qualifications. Minimum qualifications would be written into the Constitution, and the nominating commission would evaluate all applicants to ensure that only the most highly qualified — based on experience, knowledge and reputation for honesty and ethical behavior — are recommended to the governor for possible nomination.
Elections are Not an Open System
Many lawyers would make good appellate court judges. Their legal experience, knowledge and commitment to impartiality would qualify them to sit on the appellate bench. But the electoral system is not really an open system. Instead, to run for judge, one needs political connections, money or access to it, and the contacts to run a statewide campaign. This virtually excludes many qualified lawyers, including those from public service, small practices and smaller counties, to name a few. But our judiciary is stronger and the public has more trust in courts that reflect all the diversity — geographic, professional, racial and ethnic, gender, political — of our Commonwealth.
Merit selection deepens the candidate pool and opens up the selection process to qualified lawyers with different backgrounds and experience. Lawyers would submit applications to a broad-based nonpartisan nominating commission without having to worry that they couldn’t raise the cash to run a campaign or didn’t have connections that could help them win their political party’s support.
Voters Don’t Like Judicial Elections
Contrary to the oft-repeated refrain of those who oppose judicial selection reform, voters are not fans of electing judges. The numbers bear this out, with the already abysmally low voter turnout numbers dropping even lower when it comes to judicial races. Even in years with a more high-profile top of the ticket race, there is an extreme drop-off when voters reach the judicial election portions of the ticket.
Voters report that they do not feel able to make informed decisions about judicial candidates because of the lack of useful and easily obtainable information, limited media coverage, and the difficulty of relying on the sound bytes of campaigns to determine who would make a good judge.
Only the voters can change the way we select judges; any constitutional amendment the legislature passes must be approved in a voter referendum. That means no one can take away the right to vote. Instead, the public can vote for change.
How many more judicial scandals will it take? Pennsylvanians deserve better. We must demand the chance to vote on whether we have had enough of a broken system.
Getting there requires a focus on the big picture and the need for change. Supporters must make judicial selection reform a priority. We need real champions for change, champions willing to exert their time and resources into this effort. We must channel those invaluable resources to bring this issue to the people.
Pennsylvanians for Modern Courts invites those who care about our courts to join with us as we work to build a consensus belief that the problems inherent in judicial elections require major reform. We welcome your suggestions and hope you will join us. •
Lynn A. Marks and Shira J. Goodman are the executive director and deputy director, respectively, of Pennsylvanians for Modern Courts, a nonprofit, nonpartisan court reform organization. For more information, visit www.pmconline.org.