Judges for all
Merit selection can close diversity gap plaguing courts
For all the recent national news on the quick confirmation of Justice Neil Gorsuch to the U.S. Supreme Court, 90 percent of all judicial business in America is handled at the state court level, according to a report by the American Constitution Society for Law and Policy. And in some places — especially in Pennsylvania — judge is still an elected position, not an appointed one.
On its face, an election gives candidates from diverse backgrounds a chance to serve as jurists. In practice, the reverse tends to be true.
Alabama and West Virginia, for example, hold partisan judicial elections. They have no judges of color on any of their statewide courts, while their minority populations are 30 percent and 6 percent, respectively. It’s virtually the same case in Pennsylvania, with a 17 percent minority population: Superior Court Judge Lillian Harris Ransom, who is AfricanAmerican, is the only judge of color on the state bench, and her term expires this year.
In fact, while people of color make up roughly one-third of the nation’s population, 25 states have all-white Supreme Court benches. At the same time, our nation’s law schools’ enrollment increasingly reflects our population. How can we close the gap between qualified candidates of color and the judiciary?
A bill currently in the House Judiciary Committee, on which I serve, focuses on the merit selection of judges. It is supported by a wide range of voices, including Pennsylvanians for Modern Courts, long an advocate of merit selection, and would be an important first step toward that goal.
Under this hybrid system in which local judges would still be elected but all statewide judges and justices would be appointed, the governor would appoint judges and justices from a list of candidates nominated by a diverse nominating commission, with a two-thirds Senate majority vote required for confirmation.
Voters would still have the opportunity to vote to retain these judges and justices after having four years to evaluate their performances on the bench.
Thirty-four states and the District of Columbia use some form of this selection model for intermediate appellate and general jurisdiction courts, with 24 of them and D.C. using it to select their high court justices.
For example, state supreme courts that are the most racially diverse — California, Hawaii, New York, Maryland and Florida — all use some form of merit selection.
As written, the bill calls for much greater diversity, with a nominating commission composed of eight legislative appointees and five appointments by the governor.
It also specifically provides that the appointing authorities should take into consideration that the commission should include members who reflect the geographic, racial, ethnic, gender and other diversity of the commonwealth.
It does not preclude any qualified candidate, current or former, from that process. Rather, the goal of merit selection is to ensure candidates are chosen thoughtfully, deliberately and by a broad range of decision-makers. And currently? The bestfunded candidates have a stark advantage at the polls, meaning a few glossy campaign fliers, television ads and high ballot position are likely all that stand between them and the bench.
No system is perfect or will completely represent the communities a court serves. However, merit selection would allow for thoughtful consideration by the nominating body of all the qualifications of the candidates who apply to serve.