When I came to Harrisburg as an intern, a statewide judicial race was underway. In those comparatively horse-and-buggy days, high-priced consultants were not making a living off judicial races, and party help was mostly ministerial. Judicial races ranked low on the party scorecard, making party dollars scarce. The Republican candidate dutifully brought yard signs and bumper stickers and other paraphernalia down to state committee for distribution to the counties. The color scheme involved a Hershey chocolate brown background with white, yellow, and orange lettering. No one could recall seeing anything comparable, but out the material went nonetheless.
Soon afterwards, Republican National Committee sent around a study ranking the effectiveness of various color combinations in motivating voters. Of several dozen combinations, this one rated dead last. Now Republicans were not winning many statewide judicial races in those days, especially post-Watergate, so even an effective color scheme would not have made much difference.
This was my first small insight into the oddity of throwing judicial hopefuls into the partisan political arena, where intellectual capacity and judicial temperament take a far backseat to party registration and regionalism. Forty years of watching judicial elections and seeing the notable flaws has firmed my belief that merit selection is a better way to go. But despite periods of judicial scandal and disrepute and concerted advocacy for change, the emotional attachment to elections has carried more weight with the public than the intellectualism of a nomination and confirmation process. Thus, the treadmill keeps turning. Judicial candidates are forced to forge political ties during the course of a campaign, and then those ties become hammers to batter their motives when their decisions are displeasing.
Fast forward to 2017, and a race for state Supreme Court. High-tech tactics, heavy interest group involvement, and big money have become central elements of judicial races. This has not improved the ethical scenery any.
Prior to the election, Republicans put out shabby mailings suggesting our candidates were more flag-loving and patriotic. Then the Republican chairman doubled down with a contrived disparaging of Democrat Dwayne Woodruff. This struck me as out-of-bounds, having observed Woodruff’s stellar service on the Interbranch Commission for Juvenile Justice, convened to investigate and recommend remedies for the notorious Kids for Cash scandal, and hearing his intense commitment to protecting kids. These pertinent virtues get buried in the campaign manure heaped deep.
Such gratuitous distortion and distraction from Woodruff’s qualifications raised a few questions. Why do judicial elections make highly intelligent individuals surrender their discretion and dignity? How does dredging up the dark muck of modern political discourse help burnish the image and perceived integrity of the judiciary? Unfortunate answers: winning is the prize, and tearing down wins votes.
After four decades of well-conceived plans going nowhere, it appears the chances of seeing merit selection implemented are equivalent to North Korea up and deciding to unilaterally disarm.
Is there some middle way between the two polar methods? A proposal to create judicial districts is periodically suggested to neutralize geographical imbalance on the statewide courts and contain the costs of campaigning. That certainly is one possibility, but it does not address the impact of partisan politics undermining public respect for and confidence in the courts.
If we are wedded to voters picking judges, then how about backing political parties out of the equation? Instead of having party-dominated primary and general elections, hold nonpartisan elections. Set whatever minimum qualifications are determined desirable for the various courts, and then Republicans, Democrats, Independents, Greens, and whoever else can decide if they want to put their credentials on the line. Rather than the traditional primary, there could be a preliminary vote to cull an unwieldy list of candidates. This approach would require a separate ballot, but in the age of technology that surely can be worked out. While election officials reflexively squawk about the costs attached to any change, goodness knows a lot of state money is spent on far lesser causes than ensuring a respected and trustworthy judiciary.
Electoral apostasy, yes, but consider the case. Judicial philosophy, rather than party identification, is the greatest determinant of how a judge will approach controversies. It is dissected endlessly during the confirmation hearings for federal judicial nominees. When political parties look at prospective candidates, they are assessing electability, first and foremost. Experience keeps reinforcing this is not the best recipe for the high quality judiciary most Pennsylvanians profess to want.
Advantages to nonpartisan judicial elections include:
*Candidates would still have to go out and meet people and visit parts of the state beyond their home areas. Likely more frequently, because the party apparatus would no longer be carrying them.
*Individuals discouraged from running by the ferocity of negative politics might find nonpartisan elections more inviting. A fuller field of candidates forces more attention to be paid to qualifications, for it becomes exceedingly tricky and expensive to try to trash all the contenders but one.
*Candidates will need to shop for public forums rather than political functions to advance their credentials. With party endorsements no longer being the holy grail, kissing political rings loses value.
*Independent voters get to have their votes count throughout, no longer shut out of party primaries.
*The screening and rating exercises of good government groups, legal entities, and others take on greater relevancy for voters. Political parties are still free to weigh in, but they no longer serve as effective gatekeepers.
This new structure retains a major imperfection, as the impact of big money remains a concern. Perhaps removing political parties from the equation will make some form of campaign financing a more palatable option for state decisionmakers.
It would be naïve to think any system can remove distortion, hyperbole, and alternative facts from campaigning. But at least the negatives will be ginned up based on personalities and records rather than party message points.
A constitutional amendment is required, as would be the case with merit selection or judicial districts. That is a difficult and time extensive process. The easy thing, too often the default position in Pennsylvania, is to stick with the status quo. The current structure has been showing flaws for decades, is getting worse as costs go higher and tactics go lower, and is not serving the public interest in a strong and independent judiciary very well.
If the move to merit selection is not in the cards, then Pennsylvania ought to test a different approach to elections that holds promise for shifting the argument from partisan politics to judicial qualifications and capability.
David A. Atkinson is an Associate of the Susquehanna Valley Center’s Edward H. Arnold Institute for Policy Studies.
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.