May 13, 2016 By David Atkinson, Associate, Susquehanna Valley Center

From a public policy perspective, raising the mandatory retirement age of Pennsylvania’s judges seems sensible. However, voters see it differently. Had the primary ballot question on the subject actually counted, it would probably have been rejected. Voters do not appear in the mood to give state jurists any perceived benefit.

So what might happen if voters are presented with a more dramatic proposal for improving judicial quality – merit selection of judges? The answer is well worth finding out.

Pennsylvania is among the small number of states electing judges at every level. That distinction is hardly a matter of civic pride. Periodic scandals plaguing the courts and low public confidence in the judiciary combine to rekindle debate about changing the way we select judges.

Reformers have reason to believe the move to a nomination and confirmation process for selecting state judges would prevail, if voters are given the chance to decide.

Judicial selection has been argued about for fifty years. Trouble is, the case for change is intellectual; the opposition is emotional. Even the impeachment and conviction of state Supreme Court Justice Rolf Larsen in 1994 was not enough to propel the issue past political opponents. There is clearly populist appeal to judicial elections, and a determined coalition of interest groups has proved potent in blocking efforts toward change.

Why do advocates persist then? Two overriding flaws in judicial elections cannot be fixed.

Flaw number one is issue discussion. Unlike legislators or governors, judges are not representing a constituency. They should not be delineating issue positions. Rather, they are charged with applying the Constitution, law, and reason to settling legal conflicts and sorting out collisions of rights. Judges are supposed to review facts, arguments, and precedents, not match a case against a checklist of campaign trail commitments.

Flaw number two is the source of funding for judicial campaigns. Traditionally, a high proportion of funding comes from individuals and groups likely to have cases before the courts. This deeply concerns good government groups and commentators. And the situation is growing more ethically perilous because U.S. Supreme Court decisions have freed up big contributions. The advent of large independent expenditures raises the prospect of undue outside influence skewing state judicial elections.

In the federal nomination and confirmation process, the crucial consideration in assessing qualification is judicial philosophy. Under an elected system such as ours, the crucial consideration is electability. It is odd to expect judges to exert political skills and then renounce them.

Years ago, a good government group did an extensive survey and conducted focus groups. Not only did many participants fail to identify currently sitting judges, they could not remember the name of one judge for whom they had voted. That fairly indicts the hoary contention that judicial elections produce familiarity and provide accountability.

Judicial elections are rarely high profile or high turnout affairs. The factors that tend to make a difference – name, geography, party endorsement – are not attributes on a par with the qualities that make a good judge.

The common argument of opposition to merit selection is that elitists are trying to take away our right to vote. An appealing argument, but misleading nonetheless. First, a constitutional amendment requires a statewide referendum. So the people decide. Second, more reform-minded legislators are being elected, by no means an elitist crowd. They need to approve a proposed constitutional amendment in two consecutive sessions before it goes to the voters. Third, retention elections will remain part of the process.

Much is made of widespread partisan disagreement in Pennsylvania politics. So when former governors – Republican and Democrat, conservative and liberal – come together to support merit selection, it is noteworthy and impressive. They may not agree on how the three statewide courts rule, but they clearly share a view on how to best constitute the courts.

A merit selection amendment was submitted to voters 47 years ago. It was narrowly defeated, at a time when anti-establishment fervor was running high and anti-lawyer sentiment was pervasive. Time for a fresh determination. Pennsylvania confronts two generations of accumulated evidence of the inherent weaknesses of judicial elections and the consequent diminishing of public respect for and confidence in the judiciary.

The deadline for first-round approval of a proposed constitutional amendment falls in early August. That is keyed to the advertising requirements for amendments, 90 days before elections to inform voters. Miss the deadline, and it is another two-year setback.

Granted, Pennsylvania has produced outstanding jurists. But there is not an established reputation for surpassing judicial excellence. Criticism of state appellate courts for being too political is commonplace. Talented individuals regularly decline to run the political gauntlet of partisan election. The unavoidable conclusion – judicial elections are not as conducive to integrity and respect as should be the case for three statewide courts of immense jurisdiction, responsibility, and importance.

David A. Atkinson is an Associate with The Susquehanna Valley Center for Public Policy
Nothing contained here should be considered as an attempt to aid or hinder the passage of any legislation before the General Assembly.
The views expressed here are those of the author and not necessarily those of The Susquehanna Valley Center for Public Policy.