MYTH: Judges should be elected just like other public officials.
REALITY: Judges are different from all other elected public officials.
Judges serve the public, but they do not represent the public, nor do they represent special constituencies. Judges are sworn to uphold the law – they apply the law to the facts, regardless of popular opinion, political pressure, or personal belief. This is decidedly different from legislators and executive branch officials who represent constituencies and who are elected based on the promises they make.
MYTH: The problem of financial contributions to judicial campaigns can be solved by campaign finance reform.
REALITY: The problem of money in judicial elections is not an issue of how much is being contributed to or spent by judicial campaigns. The problem is the fact that any money is being contributed at all.
Typically, the most active donors in judicial campaigns are lawyers, law firms and organizations or entities that frequently litigate in the state courts. Although judges are not supposed to take into account whether a party or lawyer contributed to his or her campaign, judges are not required to recuse or disqualify themselves from cases in which campaign contributors are lawyers or parties. As a result, during litigation, it is often the case that one party or counsel for one party has contributed to the campaign of the judge. This situation could create the appearance of bias or partiality and undermine the other side’s confidence in the judge and the judiciary as a whole.
MYTH: Merit selection in Pennsylvania would mirror how federal judges are chosen.
REALITY: Merit selection is very different from the federal system for appointing judges.
In the federal system, the president nominates any one of his/her choosing. In a merit selection system, the Governor nominates only from the nominating commission’s list of recommended candidates. Federal judges serve for life. In a merit selection system, judges serve for an initial term of several years, and continue to serve only after the public approves in periodic retention elections.
MYTH: Merit selection will result in the appointment of only big firm lawyers from major metropolitan areas to the appellate bench.
REALITY: Merit selection will open up the judicial selection process to qualified lawyers from all over the Commonwealth and from many different sectors of the legal community.
American Judicature Society statistics confirm that in merit selection states, judges come from all different types of legal practice. Moreover, once partisan elections are eliminated, there would be no advantage to hailing from a large city (where the most voters are located and the money is concentrated). Thus lawyers from small cities, towns and rural areas would have as much chance to be considered and selected as big city lawyers. The need for such diversity would be recognized by the broad-based nominating commission with members from all over the state.
MYTH: Merit selection means that the people will never have a say in who sits on the appellate bench.
REALITY: In a merit selection system, citizens will still be involved in the selection of appellate judges.
Public input is possible in a merit selection system in every phase of the process. First, citizens will be represented by the public members on the nominating commission. In addition, the other members of the nominating commission are selected by officials that are elected by and accountable to the people. Second, once the nominating commission sends its recommended list of highly qualified candidates to the Governor, members of the public can communicate with the Governor about those candidates. Third, following the Governor's nomination of one of those candidates, members of the public may communicate with the Senate as it considers the nominee. Finally, through periodic yes/no retention elections, the public decides whether a judge who reaches the bench through the merit selection system continues to serve.
MYTH: Merit selection is just as political as a partisan election system .
REALITY: Merit selection systems reduce the influence of partisan politics on judicial selection.
No judicial selection process is entirely apolitical. What's important is to what extent politics dictates who ultimately sits on the appellate bench. The current election process is totally dependent on partisan politics, with no offical part focused on candidate qualifications.
Most proposed merit selection plans call for the nominating commission to be bipartisan. The Governor would have to select, and the Senate could only confirm, judges from the commission's list. A 1993 American Bar Association survey reported that an overwhelming majority of nominating commission chairs around the county felt that political influence or considerations either never or only infrequently intruded into the commissions' deliberations.
MYTH: The partisan election system should be improved rather than discarded.
REALITY: The election process is not "fixable."
None of the most commonly proposed election reforms -- public financing, rotating ballot position, eliminating county designation from the ballot, capping lawyers' contributions to judicial campaigns-- solves the core problems associated with electing judges. Judicial candidates still would have to raise money and attract substantial political support, and voters still would not have enough valuable, relevant information to make truly informed decisions.
MYTH: A legislator's vote for merit selection of appellate judges in the General Assembly is the same as a vote for eliminating partisan elections.
REALITY: A legislator's vote for merit selection is the first step in a lengthy process that ultimately allows the people of Pennsylvania to vote on a constitutional amendment to change the judicial selection system.
Changing the judicial selection system requires a constitutional amendment approved by both the Senate and House in two consecutive sessions. The issue is then put to the voters in a statewide referendum. Therefore, a lawmaker casting a vote in favor of a merit selection proposal does nothing more than create the opportunity for citizens to decide for themselves how appellate judges should be chosen. Even some lawmakers who are opposed to merit selection acknowledge that it's time to let the people decide.
MYTH: Voters are informed about and involved in judicial elections.
REALITY: Judicial elections are the least understood, least covered by the media and least visible of all elections.
Most voters feel unprepared to make critical decisions about who is qualified to be a judge. Voters report that they are uninformed about the candidates and have difficulty finding information upon which to base their decisions in the voting booth. Although PMC and other organizations work to fill this information gap, this is further evidence that elections are not designed to get the most qualified individuals on the bench.
