No system for choosing judges is perfect, but a hybrid system would be better

Maida R. Milone/Special to Lancaster Newspaper - Sep 15, 2019


Like many of you, I have not spent most of my adult life thinking about how we select our judges in Pennsylvania. I have fumbled in the voting booth like everyone else trying to figure out who these candidates for judge are and how I should decide at that very last moment which ones to elect.

When so many momentous decisions that affect our lives are made by our state judges, why do we treat their selection as less important than the choices we make for legislators or executives? The answer is largely that we as voters do not generally have the information nor the experience to evaluate judicial candidates, especially those who are running for the appellate benches (in the Supreme, Superior and Commonwealth courts).

This is not a knock at us voters. It is just the reality of the situation

In our form of government, judges are not intended to be our “representatives,” but instead the guardians of the rule of law. Unlike legislators, who must tell us their positions on a variety of issues in order to get our votes, judicial candidates are not permitted to campaign on a platform of how they will decide cases that come before them, and that’s a good thing. So what do we resort to instead? Litmus tests like party affiliation or whether they can raise enough money to appear on our television or computer screens?

Judges should be chosen because of their commitment to the rule of law, their ability to be fair and impartial in the application of justice, and their legal, educational and community experience. Period. And we, as voters, are not necessarily in the best position to evaluate whether a judicial candidate is highly qualified for the role in the first instance.

What are the available alternatives?

We could move to a process in which all judges are appointed. This is not a revolutionary idea, even for Pennsylvania. Early in PA history and until the mid-19th Century, judges were appointed in our state.  It is only since a State Constitutional amendment took effect at that point in time that judges have been elected.

We could maintain the status quo, but that will continue the rise of money-fueled, partisan campaigns that give us uneven results — some highly qualified, some not qualified candidates winning a place on the bench — with all judges having to grapple with the public perception that litigants and lawyers who financially support judicial campaigns have a special place in the courtroom. And we lose many fine potential candidates who do not want to submit themselves to the campaign gauntlet.

At this time, Pennsylvania remains one of only seven states that elects all of its judges in partisan elections. Perhaps the other 43 states are on to something.

A third alternative is a mix of both systems: a hybrid merit selection process for statewide appellate judges and elections for local judges. This process preserves a significant role for voters, while introducing a more refined selection process for justices and appellate judges who are the final arbiters of litigation issues. This considered mix would significantly reduce the influence of money and special interests in our appellate courts and remove politics from the selection process at the appellate level as much as is possible in human endeavors. Given the political realities of our state, this alternative is the best reform that could be achieved currently in my opinion.

Here’s what a switch to hybrid merit selection would look like:

— First and foremost, the voters of Pennsylvania would make the decision to approve a change to our state constitution to allow for hybrid merit selection rather than partisan elections; the ultimate decision would be in the voters’ hands.

— Voters would continue to elect judges for Common Pleas and Magisterial Districts courts. In other than our state’s largest counties, most residents know the people running for their local judiciary and can cast more meaningful votes than for statewide judicial positions.

— Anyone meeting the minimum qualifications for justice or judge of an appellate court could apply and be considered by the state’s bipartisan citizens nominating commission; applicants would not have to be endorsed by a party or demonstrate any fundraising or campaigning ability.

— A 13-person nominating commission would be selected: five appointed by the governor (no more than three of whom could be from the same political party) and eight appointed by the Legislature, two each by both caucuses of the House and Senate.

— Commission members would be a mix of lawyers and nonlawyers; would not be state or party employees; and would reflect the diversity of Pennsylvanians.

This commission would select five highly qualified candidates for any newly open seat on our appellate courts, and 10 of the 13 members would need to agree before a candidate’s name goes on the list of five, ensuring a high level of bipartisanship in the nomination process.

— The governor would choose one candidate from that list (and that list alone) and send that candidate’s name to the state Senate for approval.

— That candidate would need to be approved by a two-thirds majority vote of the Senate.

— Once appointed, justices and appellate judges would run for retention — an up or down election vote — after they serve only four years on the bench; again, the voters would decide but with knowledge of how the jurists are performing in their appointed roles.

Judges are important. In fact, one could argue they have the most important role in our form of democracy. Therefore, it is critically important that we build and protect the public’s respect for this third branch of government.

We can do that, in part, by elevating only the most qualified people to the bench and diminishing the role money and politics play in their selection. In this less than perfect world, a hybrid merit selection process is the best and most feasible alternative for Pennsylvania.