The Judiciary Committee of the Pennsylvania House of Representatives will hold a hearing on November 17 to consider Merit Selection for the appellate courts. In September 2011, PMC and PMCAction announced that the legislation was introduced into the General Assembly to institute a Merit Selection system for the three statewide appellate courts. The bills House Bill 1815 and House Bill 1816 were introduced by Representatives Bryan Cutler (R-Lancaster) and Josh Shapiro (D-Montgomery).

Under the proposal, a summary of which is available here, the judicial selection process has four steps: (1) screening and evaluation by a citizens’ nominating commission that recommends the most qualified candidates to the governor; (2) nomination by the governor of a candidate from the commission’s list; (3) confirmation by the Senate; and (4) after a number of years on the bench, retention in a nonpartisan yes-no vote by the public.

The cornerstone of this plan is the Appellate Court Nominating Commission, a broad-based citizens commission that includes public members nominated by organizations throughout the Commonwealth.  The commission would be responsible for screening, evaluating and recommending candidates for appellate judge. 

The commission is different from every other commission in Pennsylvania and commissions in prior merit selection proposals because it is more inclusive of the public.  It includes members who are not appointed by elected officials, but who truly are “public members,” drawn from various segments of Pennsylvania, including civic organizations, business organizations, unions, bar associations, nonlawyer professional associations, public safety organizations and law school deans.  These members will serve as equals alongside members appointed by elected officials.

Pennsylvanians will have the opportunity to provide input at each stage of the process.  The public will give information to the commission about applicants for judge, to the governor about individuals recommended by the commission, and to the Senate during the confirmation process.  Following a four-year term (and every ten years thereafter), judges stand for retention in nonpartisan yes/no elections.  The public makes the ultimate determination about a judge’s continued service.

The Benefits of the Proposal

The merit selection proposal offers a judicial selection process that eliminates money from the system and puts a premium on selecting highly qualified judges.  Currently, to run for appellate court, one simply must meet age and residency requirements and be a Pennsylvania lawyer.  There are no requirements about legal experience or knowledge, community service, or even having a reputation for being fair and impartial.  The new plan writes into the constitution minimum criteria for appellate judges.  Anyone who is recommended by the nominating commission will be highly qualified to serve on our appellate courts.

The Public Wants the Opportunity to Weigh in on Judicial Selection

In Spring 2010, Governor Rendell held a press conference urging the legislature to give the public the opportunity to vote in a referendum to decide whether to change how we select appellate court judges.  Then, in June Governors Rendell, Ridge, Thornburgh and Schweiker joined PMC and PMCAction in a press conference announcing a poll showing widespread public support for Merit Selection. 

The poll — conducted for PMC, PMCAction, Justice At Stake, Committee for Economic Development and the American Judicature Society — gauged Pennsylvanians’ obvious frustration with the judicial system: 53 percent of respondents believe the electoral system is broken, 73 percent  say the most qualified candidates do not win judicial elections, and 76 percent believe campaign contributions influence judicial decision-making.  A summary of the poll is available here.

A full account of the press conference, which showcased the wide breadth of the bipartisan coalition pushing for the change, is available here.

For more information about the effort to bring merit selection to Pennsylvania's appellate courts, visit our blog JudgesOnMerit.org.

Judicial Elections Threaten Judicial Independence

In the most recent edition of the Duquesne Law Review, Pennsylvanians For Modern Courts makes the case that partisan election of judges “creates special challenges to the ability of judges to achieve and maintain judicial independence.” Deputy Director Shira J. Goodman, Executive Director Lynn A. Marks, and pro bono attorney David Caroline collaborated on the article, titled “What’s More Important: Choosing Judges or Judicial Independence?” Citing academic research and public opinion polls, they argue that campaign contributions and political partisanship make it almost impossible for elected judges to serve without fearing accusations of bias. And recent loosening of campaign finance regulations will only exacerbate the problem in the future.

Readers with access to HeinOnline can read the complete article using the citation 48 Duq. L. Rev. 859.