By Maida Milone and Julia Jones
Questions about judicial independence and accountability seem to be on just about everyone’s mind these days. Our hope for this article is to contribute to this critical national dialogue by taking a hard look at the processes by which judicial officers are selected and sharing some thoughts about how best to ensure the legitimacy of those selection processes. In particular, we examine here how “appointive systems” function and suggest ways in which they might bolster public confidence in their choices.
A word about us. Judicial selection systems are of particular interest to us. We are both associated with Pennsylvanians for Modern Courts (PMC). In the 1980s, public confidence in the Pennsylvania judiciary sank to an all-time low following a series of public judicial scandals. To restore citizens’ faith in the courts, then-Superior Court Judge Phyllis W. Beck joined with other respected civic leaders to form PMC. Established as a non-partisan, nonprofit organization dedicated to promoting judicial ethics, PMC has functioned as Pennsylvania’s only official “court watchdog” for nearly 30 years.
One of PMC’s core missions is merit selection reform, including amending Pennsylvania’s constitution to establish a meritbased appointive process for selecting its appellate judges and justices. To develop a model for a proposed appointive system for use in Pennsylvania, we surveyed a variety of appointive systems from across the country. We draw on that knowledge base here.
In this article, we first examine the perils of influence-seeking money in judicial elections in Pennsylvania and nationwide. Second, we briefly sketch various approaches to appointive judicial selection systems in use throughout the nation. Third, we review Delaware’s judicial appointment process and compare it with the model we have developed for meritbased selection of appellate judges and justices in Pennsylvania. Fourth, we take a look at some of the criticisms that have been leveled against merit selection processes. Finally, we share some thoughts on best practices for implementing a merit selection system to ensure public confidence in the quality and independence of jurists seated through that process.
Big Money’s Influence in Judicial Elections
To one extent or another, Pennsylvania has relied upon an elected judiciary since 1850. Today, even the most qualified judicial candidates for statewide appellate judgeships are dependent on campaign contributions from individuals and special interest groups with business before the courts. This dependency creates an appearance of impropriety that ultimately undermines public confidence in Pennsylvania’s courts and potentially threatens judicial independence. As of 2001, 90 percent of voters nationwide believed that special interest groups attempt to shape policy by contributing to judicial campaigns. Eighty percent of judges reported having the same concerns. As one Texas judge memorably said, calling judicial electoral systems “‘imperfect’ is a G-rated description,” and noted that he and every member of his court “aggressively” favors replacing them Recognizing that judicial elections would also eliminate the need for aspiring judges to fundraise, PMC has been a longtime supporter of merit selection reform.
As recently as November 7, 2017, Pennsylvanians voted to retain two sitting Supreme Court Justices and elected one for a 10-year term, all of whom were required to raise some amount of money in order to be competitive candidates. One of the candidates for the open seat on the bench raised significant dollars from an interest group that were used to fuel a last-minute television ad blitz against the candidate’s opponent that some people viewed as unfairly slanted. This election, not unlike others in the past, resulted in candidates who were deemed “unqualified” for the bench by the Commonwealth’s bar associations defeating candidates who were deemed “highly qualified.”
According to the Brennan Center for Justice, a nonpartisan nonprofit that tracks court issues, Pennsylvania’s 2015 Supreme Court election “cost” nearly $16 million dollars, including $12 million in television spending — a form of advertising that often disseminates negative or inflammatory information about judicial candidates and their past decisions. Moreover, voters usually had no idea who was paying for this advertising. The Center found that only 3 percent of the organizations that funded television spending in the race did so transparently — the identities of most donors were undisclosed.
What you'll find
PMC press releases, statements, and news coverage of our work, in addition to the latest news on Pennsylvania's courts, judicial elections, ethics, discipline and more.
Pennsylvanians for Modern Courts is a statewide nonprofit, nonpartisan organization dedicated to ensuring that all Pennsylvanians can come to our courts with confidence that they will be heard by qualified, fair, and impartial judges
1500 John F. Kennedy Blvd., 2 Penn Center, Suite 1140, Philadelphia, PA 19102