In the Winter Olympics, champions in a variety of sports are determined by how swiftly they race downhill. Individual performances are amazingly fast, and the difference in winning can be a fraction of a second.
In the competition to achieve victory on state government reform, the course runs in the opposite direction – steeply uphill. And the time for negotiating the track from start to finish can be measured in years and sometimes decades. This is certainly true of an issue, merit selection of judges, on the course for more than fifty years and still requiring high-powered binoculars to see the summit.
Pennsylvania recently experienced a modern first – three vacancies on the seven-member state Supreme Court filled in the same election. We have to go back to colonial days to find a similar circumstance. As is frequently true of historical milestones in the Commonwealth, this one comes with a less-than-flattering footnote attached. Only one of the vacancies was naturally occurring, with the chief justice reaching the mandatory retirement age. One opened through a resignation prompted by scandal. One opened due to the criminal conviction of a justice.
This election underscored both the advantages and disadvantages of electing judges. The field of candidates emerging from the political party screening process and the primary election featured a diversity of candidates carrying a mix of experience. However, no one seemed to be expressing the view that voters were choosing from among the Commonwealth’s top echelon legal talent. Rather, the focus was on the prospect for changing political control of the top court, which did in fact occur.
Big amounts of money came in, much from the traditional sources. The six candidates raised over $12 million. Two independent groups spent $3.5 million. Numerous ads were run, some cringe-inducing. Voter turnout was predictably pathetic, especially in light of the stakes involved.
When the results were tallied, the outcome looked familiar to observers of judicial elections. Democrats combined a sizable long-standing voter registration edge with serious infusions of money from unions and trial lawyers to rack up decisive victories. Republicans did not get the boost from outside expenditures that had been speculated, nor did their advertising apparently make much of a positive impression on the voters.
For those who worry about the quality and impartiality of statewide courts, the most expensive judicial elections in state history add fuel to doubt and concern. Combined with the painful spectacle of turmoil engulfing the state Supreme Court, this should breathe new life into the debate over how we select judges for the three statewide courts.
This is not an effort to throw a cloud over the credentials or the capabilities of the winning candidates. Their victories were fairly achieved under the system as it exists. Rather, the discussion is over whether a different system would better serve Pennsylvania’s long-term interests in a quality judiciary.
The fundamental question is this: Does the method by which judges are selected make a difference on who sits on the courts? Yes, it does, and that in turn affects the public perception of judges.
Consider that the usual identifying trait of the justices on the U.S. Supreme Court (chosen through a nomination and confirmation process) is where they fall on the philosophical spectrum – conservative, liberal, moderate. Decisions are usually analyzed by noting who hewed to and who departed from the philosophical typecast. A secondary factor referenced is the President who nominated the justice, although there is no strict correlation between expectation and performance to be found. Dwight Eisenhower, when asked if he made mistakes as President, replied that there were two, and both were sitting on the U.S. Supreme Court. That illustrates the point that judicial performance is invariably unpredictable, no matter how careful the vetting process.
In contrast, the key identifying trait of the justices on the Pennsylvania Supreme Court is political party affiliation. Decisions are analyzed by who crossed the party line. A secondary factor is how long a justice has left in his or her term before hitting the mandatory retirement age.
What should be a transcending factor in assessing judicial capacity – judicial scholarship – weighs more heavily in a selection process than in an election process. Numerous landmark U.S. Supreme Court decisions are recognizable by their name, with Roe v. Wade, Brown v. Board of Education, and Miranda v. Arizona standing as prominent examples. Even more, phrases and passages from majority opinions and dissents are part of our political and civic conversations and debates. In the land of judicial elections, legal scholarship does not seem to rate the same prominence. Campaign ads or endorsements typically do not highlight the quality of opinions written. If someone is conversant in state Supreme Court decisions, by name and by content, you have probably run into a litigant or an academic.
Now as consequential as this difference seems to students of government and politics, it just does not light up the switchboard for voters. Bring up merit selection of judges, and it is unlikely to get much recognition or reaction. Yet, this issue has been a matter of public contention longer than familiar hot button matters such as elimination of property taxes or privatization of state stores.
Pennsylvania is out of the mainstream among states by electing judges at every level through partisan elections. Of course, that sort of odd-duck distinction is not unusual, as anyone who has visited a state store well knows. One of the enduring peculiarities of Keystone State politics is that more folks are pressing more aggressively to change how we purchase Jack Daniels and Chivas Regal than how we select the members of a powerful and impactful branch of state government.
While scandal has compelled reform moves affecting other parts of state government, that element alone has not proved sufficient to change the process of judicial selection. Even the impeachment and conviction of state Supreme Court Justice Rolf Larsen in 1994, culminating a lengthy slide of the state judiciary into public disrepute, did not provide the necessary political momentum.
We are far removed from the last official test of merit selection, when Pennsylvania voters had a chance to register an opinion in something more telling than the garden variety public opinion poll. The Constitutional Convention of 1967-68 created the modern state judiciary, known as the unified court system. The delegates wrestled vigorously over judicial election versus judicial selection. The matter was submitted to state voters in 1969. They delivered a narrow win for judicial elections, by a margin of 19,000 votes out of nearly 1.3 million cast. It was a year of protests against the system, anti-lawyer sentiment was prevalent, and voters were being asked to overturn a tradition dating back more than a century. In such an adverse climate, defeat of merit selection was not a total surprise, although the narrow loss maybe was.
However, as the years have gone by without a flicker of success, that vote has come to be seen as a momentum killer rather than a momentum builder. Thus, the obvious needs to be stated – Pennsylvania is a far different place now than back then. There is no reason for merit selection advocates to accept a ballot decision rendered two generations ago as binding or predictive.
Lack of change cannot be chalked up to any shortage of thoughtful proposals or the absence of bipartisan interest. Over the years, influential Republican and Democrat governors and legislative leaders have embraced merit selection. Probably no one made the case more clearly or more compellingly than Governor Dick Thornburgh, whose good government credentials were top-notch. Yet, while constitutional amendments on judicial discipline he launched were eventually approved, merit selection did not make equal headway. In 1988, the prestigious Beck Commission under Governor Bob Casey presented another case for merit selection, but Pennsylvanians were again unmoved by blue-ribbon recommendations. Editorials have been unrelentingly supportive in overwhelming proportion. There are polls to bolster every position, because it all depends on how the questions are asked, and no one is paying for polls using hostile framing at this juncture.
Years of advocacy and variations on plans have successfully proved one point – there is not a magical configuration of a merit selection plan that will suddenly make the votes materialize. The details tend to be a zero sum game – the twist in a plan designed to attract a few votes repels others in like amount.
The biggest stumbling block does not require Sherlock Holmes to deduce – change does not come easily in Pennsylvania. And advocates have a tougher job in playing offense, because the arguments for merit selection are intellectual. The opponents playing defense have emotion and suspicion on their side. Merit selection is not going to win through a flanking movement; it is going to take a frontal assault against well-entrenched opposition.
Historically, the opposition has been led by groups who believe they have been regularly successful in electing sympathetic judges. From that view, merit selection becomes the position of the losers. The vanquished are hoping what cannot be attained through the electoral process might instead be realized through a nomination and confirmation process. Defenders of judicial elections are also fond of pointing to the lesser lights sitting on federal courts and contending that nomination and confirmation is an equally imperfect process. A successful judicial candidate said that merit selection contained “an element of condescension” because it essentially tells voters they are not smart enough to select good judges.
Therefore, a successful case for merit selection must convince the public that there are inherent and incurable flaws in judicial elections. The fault is in the process, not in the players. First off, immersing prospective jurists in the political process has unintended consequences. Citizens and commentators frequently complain that Pennsylvania courts are too political in orientation and action. It is an odd thing to expect judicial candidates to master the arts of campaigning during a court race and then to check those political impulses at the door of the courthouse.
Political parties worry first and foremost about electability. So the questions put to candidates are about things such as do you come from a place where there are plenty of voters in off-year elections and can you raise money and are there any skeletons in your closet? Considerations such as judicial temperament and philosophy are fairly far down the list, if ever asked.
If there is a point on which both sides agree, it is that the method of choosing judges affects the pool of participants. Under judicial elections, there have always been individuals of legal ability and community stature who have declined to engage in campaigning. There have always been individuals of legal ability and community stature who decide to make a run and prove to be thoroughly inept at it. The contrasting limitation is that the politically street-savvy, rough-and-tumble types may not fare as well in a nomination and confirmation process.
The politically seductive argument that undergirds opposition to merit selection – the elitists are taking away your right to vote – has always been disingenuous. Merit selection requires a constitutional amendment that cannot take effect unless approved by the voters. Nobody takes anything from the voters. The voters have the chance to express their preference between sticking with the current system or substituting one similar to those in effect in most states. Plus, merit selection plans retain the mechanism of retention elections, so the voters are not entirely taken out of the process.
A fundamental precept of representative democracy is that elections help ensure accountability. How does that work in relation to judges? An interesting answer was provided in 2000. The Committee of Seventy, a good government advocacy group in Philadelphia, issued a report titled: Who Chooses? The Need For Judicial Reform In Pennsylvania. Why does a document produced sixteen years ago stand out from numerous other surveys and commentaries on the subject?
One of the information gathering tools used was focus groups of judicial voters. It was dismaying, but not surprising, that few knew much about the judges at the time. The second piece was more astonishing. None of the individuals could remember the name of the last judge they voted for. Now focus groups are assembled to represent a cross section of opinion. Admittedly not a large sample, but enough to call into question the notion that judicial elections contribute to accountability. If people cannot remember who they voted for, and know next to nothing about the judges making decisions, where exactly is accountability then to be found?
Naturally, the defenders of judicial elections prefer to politically stop the debate at the starting gate, before they have to commit time and resources to a larger opposition effort. Why run risk when it is avoidable? Give them credit – they have been consistently effective on two crucial counts – defending the system and participating in it. There is no imperative for the opponents of merit selection to compromise or negotiate, absent some intervening event that threatens to alter the balance. The most prominent possibility at this point would be large-scale independent expenditures, a threat that did not rise to red alert levels in the recent election cycle.
With this backdrop, what are the bedrock advantages of merit selection?
Number one is it addresses the conundrum of issue discussion. For judicial candidates, the discussion of issues is almost like the dance of seven veils – seeking to suggestively entertain and entrance the audience, except in this rendition next to nothing is ultimately revealed. There is an inherent conflict between the voter’s desire to know the positions of candidates on issues and the need of judges to maintain their impartiality.
Candidates for executive and legislative positions routinely indicate their views on a wide variety of issues. Voters expect and demand it, even extending their questions to issues extraneous to the position being sought. But for judicial candidates, specificity of the sort that voters would like creates an ethical problem. Judges are supposed to decide based on the facts of the case before them, not on promises made sometime and somewhere on the campaign trail. They rightfully cannot lay out hard and fast positions on issues of controversy, nor can they pledge allegiance to the agenda of any interest group. This principle holds for both judicial elections and judicial selection. Watch a national confirmation hearing and see how careful nominees are to avoid statements that might lead to demands for recusal in cases ahead.
Court rulings have loosened the restraints on issue discussion, but even at that only broad generalities are elicited. There is a very good practical reason. If votes are locked down before the cases come in, what is the purpose and sense of judicial review?
While this reality reflects logic and ethics, it is naturally frustrating and discouraging to voter interest. The end result is that judicial elections, being so-called off-year elections, are typically decided by geography, name recognition, and party affiliation, and thus derided as beauty contests. Issue contrasts are ruled out and essential legal considerations such as judicial temperament and opinion-writing ability are just not on the voter radar screen. Creativity does not get around this problem. Trying to juice voter turnout by scheduling judicial elections to coincide with higher profile elections just means that judicial candidates would suffer from even less attention and fewer resources than they have now.
Number two is that merit selection takes the real and perceptual taint of campaign contributions out of the equation. Campaign financing has always been a key concern about judicial elections. These contests do not draw widespread funding from donors large and small the way a gubernatorial or U.S. Senate race does. In large part, political parties have filled the breach, adding another layer to the political identity of judicial candidates. Most of the serious money comes from individuals or groups who have a vested interest in the process, those who participate in litigation in some fashion.
Public financing is the old chestnut offered as a solution to mollify critics, but that merely reduces rather than erases the problems solicitations and contributions pose for judges. And at a time when many Pennsylvania taxpayers are convinced they are too heavily taxed for too much unnecessary spending, they are not going to like having their tax dollars used to underwrite political campaigns. With pitched fights over funding for core responsibilities such as education, it is even more difficult to make a case for what many people will see as extraneous spending.
To compound the money concern, the model has changed in a controversial and corrosive way. Two recent U.S. Supreme Court decisions — Citizens United v. Federal Election Commission (2010) and McCutcheon v. FEC (2014) — have opened the door to large independent expenditures and relaxed some of the restrictions imposed by Buckley v. Valeo (1976). Whether one thinks these are wise or appalling decisions, they will have a substantial impact for years to come. Even if that genie can be stuffed back in the bottle, it will take some time in the doing. Because funding for judicial campaigns tends to run at much lower levels than other races, big contributions will have a disproportionate impact (unless the money is spent unwisely, which is not uncommon).
It goes too far to say that judicial corruption inevitably comes from judicial elections. Conversely, merit selection does not guarantee a pristine process nor does it always yield outstanding jurists. However, the confluence of money and judging highlights a basic contradiction in Pennsylvania jurisprudence. So many political controversies are sent to the statewide courts to resolve, redistricting being a recent significant example. It is impossible for the public to believe in the current structure that the consideration of highly charged cases is entirely free from the influence of campaign contacts and contributions.
Shift to a nomination and confirmation process, and legal philosophy becomes a more central factor than political affiliation. Where a judge lives and works will be notable for the legal climate in the area rather than the voter base.
Mention must be made of the reality that great reliance is placed on the sound judgment of the governor. At the state level, there is nothing discouraging in the relatively small sample of nominees confirmed to fill short-term vacancies. If we look for guidance at the record of presidential nominations, there are commonly heated arguments over the philosophy of nominees and controversial statements and actions in their experience. Rarely is their fundamental legal capacity in dispute. Nixon is the last president to consider legal mediocrity sufficient recommendation for U.S. Supreme Court, and those nominees did not survive the confirmation process.
To balance the scales, what are the potential drawbacks to switching to merit selection?
A key charge is that merit selection lessens the community sensitivity and accountability of judges. Some truth in that, as judges freed from the necessity of political campaigning are less likely to be exposed to all the regional differences in perspectives and attitudes and viewpoints found across the state. There are useful insights to be gained from the rubber chicken circuit. Nominees who never seek elective office are denied the insights into political processes – positive and negative – that candidacy and campaigning yield.
There is nothing to suggest that political ability is incompatible with serving on the courts. The pool of Common Pleas Court Judges (who would continue to be elected under any plan having a ghost of chance for approval) produces a fair number of candidates for the statewide courts. Those whose political skills overshadow their legal reputation could have a tougher time getting consideration under a merit selection process. A different system of selection means different people sitting on the courts, but not necessarily that the backgrounds or legal philosophies are changed.
What about the matter of diversity among jurists? It is impossible to prove that one method is better or lesser than the other. Diversity means a variety of things – ethnic, geographic, gender, party, legal training and experience. The way Pennsylvania is, judicial hopefuls from urban areas enjoy a built-in advantage under either method. To counter this, proposals have been occasionally floated to break the state into judicial districts, but have not gained traction. Governors making nominations would have greater theoretical potential to ensure diversity, but there is no guarantee it would play out in practice. Assuming that governors would aim at diversity, attaining it would depend in part on how nominees fare in confirmation. The long-running tradition of voters switching the governorship between parties means it is unlikely the courts get loaded and locked into philosophical homogeneity.
Elections have the advantage of a fixed calendar by which a decision is rendered. There is certainty to when a judicial vacancy will be filled. The same cannot be said for a nomination and confirmation process, in which delays can be encountered for reasons predictable and not.
Is it easier to engineer a nomination than to win an election? From the standpoint of investment of time and resources, an election is a harder course. But this does not render merit selection an easy and automatic shortcut to the bench. In all likelihood, there will be more qualified individuals vying for nomination, although the intensive background screening of the modern era will dampen interest somewhat. The hammer-and-tongs scrutiny given to federal nominees – unsuccessful such as Robert Bork and successful such as Clarence Thomas and Sonia Sotomayor – and the mountain of information easily accessible in the technology age, plus what is helpfully provided by advocacy groups pro and con, mean that a cipher will not slide through a state confirmation process. Voices of concern and dissent may not prevail in stopping a nomination, but they are not shut out or silenced. Contrary views can be drowned out in political campaigns, but not in a confirmation process that is center stage.
Given the long history of failed attempts at merit selection, what are the practical prospects for change to occur? The timeline is evident. Because of the advertising requirements contained in the state Constitution for proposed amendments, the effective date for action by the General Assembly falls in early August of the second year of the two-year session. In a normal budget year, assuming one of those might occur again, the practical deadline is earlier, around the beginning of July, when the General Assembly wraps up session for the season. Miss a deadline, and the cost is two years.
The larger question is where the impetus for accomplishing change will come from. Advocacy efforts are going to need more than the traditional groups such as Pennsylvanians for Modern Courts and the usual legislative sponsors. Since scandal has not brought out the torch-and-pitchfork crowd, chances are good there is never going to be a spontaneously generating public groundswell for moving from an elective system to an appointive system.
That means change depends on the formation of an energetic and amply-funded coalition devoted to conducting a full-bore campaign that connects at the grassroots level. It requires individuals of stature, funders, commentators, community groups, and converted former critics who can jointly persuade voters that merit selection is a better safeguard of judicial integrity than are elections.
For tactical and practical reasons, the switch to merit selection should only apply to the statewide courts. Voters are more likely to be acquainted with the candidates for county bench, and the distortive impact of money is much less of a factor. In most counties (as usual Philadelphia and Allegheny County are special circumstances because of size), elections for Common Pleas Court judges are much closer to mirroring the virtues cited by those favoring judicial elections.
One barrier to consideration of a proposed constitutional amendment has become less formidable these days. That positive sign is the logjam of proposed constitutional amendments is starting to break loose in selected instances. Increasing the retirement age for state judges to 75 has made it to the ballot. A plan to reduce the size of the House of Representatives recently gained first-round approval. Advocates of an amendment relating to purely public charities are trying to get second round approval in order to reach the ballot. Not every proposal is being held hostage by frustration over inaction on other popular notions.
An emerging negative concern is the record-length state budget dispute has sucked the oxygen out of peripheral, needed but not required, issues. It is difficult to have legislative leaders and rank-and-file legislators invest attention and political capital in another controversial issue when so many major ones connected to the budget are still unresolved.
In decades past, one of the tactics favored by the opponents of merit selection was to claim that legislative leaders championing bills were trying to achieve through reconstituted courts what they could not win in the legislative process. This argument was buttressed by citing hot-button social and economic issues that would elevate the fear factor of heavyweight interest groups. As the result of turnover combined with reforms in operating rules and procedures, the Pennsylvania General Assembly is much less leader-driven in its agenda and actions. That diminishes the concern of a push toward merit selection being the handiwork of the power elite driving specific issues.
Rounding up the requisite bipartisan coalition became more difficult because of the dynamic of the recent election. Having recaptured the state Supreme Court, most Democrats are naturally not going to be in a rush to change the system and give back the perceived benefit of their win.
So it is a matter of hard salesmanship, convincing voters that winning elections is not the ultimate step in the process – ensuring quality jurisprudence is. This involves casting the debate in practical rather than political terms. Having people understand how many major controversies that affect their lives the state Supreme Court ends up deciding. Fundamental political matters such as redistricting. Vital economic and environmental matters such as natural gas drilling. Crucial pocketbook and community development matters such as education funding. Having them understand how many landmark cases are decided by a slender 4-3 vote, which can be more lasting if grounded in policy rather than politics. Having them recognize how many decisions seem thoroughly infused with political considerations, to the detriment of public trust and confidence.
Then perhaps more citizens will come to the realization that judicial elections at the state level are not in practice the public interest exercises they are commonly depicted as being. Judicial elections have the appearance of being a fundamental expression of democracy, but it plays out quite differently. It is time to try a tested approach that puts legal skills and performance above political abilities. The only way to achieve this desired outcome is to amend the state Constitution providing for merit selection of judges. For that to occur, state legislators need to act to give the voters the opportunity to decide. The public has to help push the issue onto the agenda. As indicated at the beginning, the course is severely uphill, so more people inclined to champion reform need to break out the heavy gear and get in competitive motion.
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.