Merit selection of judges could work at all levels
There is growing consensus that the partisan judicial elections utilized in Pennsylvania and a handful of other states have serious shortcomings. But what should we put in their place?
One option: nonpartisan judicial elections, in which candidates are usually not identified with a political party. Nearly twice as many states prefer this method to partisan elections in choosing their top appellate judges. It has the obvious advantage of de politicizing judicial elections while still giving the people a direct voice in the selection of judges. Another benefit is cost effectiveness; a recent study suggested that fundraising for nonpartisan elections was one-third that of partisan elections.
However, many of the objectionable aspects of judicial elections remain, including campaigning and the use of attack ads. Nor is there a clearly defined procedure for evaluating a would-be judge’s qualifications, a critical drawback.
In short, while nonpartisan judicial elections are a distinct improvement, having the voters select state appellate judges is still less than satisfactory.
This brings us to assisted appointment, or merit selection. How exactly does this approach work? Typically, the governor, often inconjunction with the state bar association, appoints a nominating commission com - posed of attorneys, private citizens and sometimes elected or non-elected officials. The commission identifies possible prospects and may also accept applications from aspirants.
Its most important function is to conduct a thorough evaluation of candidates’ qualifications and to submit a list of three to five finalists to the governor, who then appoints the judge. After completing a specified term, usually four years, the successful judge faces a retention election in which the people determine if his/her term should be renewed. Follow-up retention elections assure that the public evaluation process is ongoing.
In Pennsylvania, House Bill 111 envisions a constitutional amendment that would replace partisan appellate judicial elections with merit selection. In its present form, the bill provides for a commission of 13 members, five chosen by the governor and eight by the Legislature. Of the latter, half would be lawyers. Significantly, no state employees, elected or appointed officials, or political party functionaries would be permitted to serve.
Furthermore, according to the House co-sponsorship memorandum, “members (of the commission) should reflect the geographic, gender, racial and ethnic diversity” of the state. While active politicians would have a role in naming the commission, the overall process would likely be considerably less political than the cur rent partisan electoral system.
There are several reasons why merit selection is superior. It creates a means for determining the judicial qualifications of potential judges, something an electoral system can’t do. Such a process favors competent candidates and weeds out unsuitable ones. As noted, it largely removes political parties and politicians from any but an indirect role. It eliminates all campaigning, including fundraising, except in a minimal sense with retention elections. And it preserves a voice for the people during the retention proceedings.
Of course merit selection is not perfect; no judicial selection method is. While it greatly limits the political component in how judges are chosen, it cannot remove politics entirely from a process that is by nature political. Both critics and advocates of the system recognize that reality. Nor does it guarantee that all appointed judges will be able to avoid dishonor or corruption; they are, like all of us, fallible humans.
On another level, merit selection can be manipulated by unscrupulous special interests who seek to turn it to their advantage—for example, by trying to influence the outcome of a retention election. Supporters of an honest and effective selection system must be alert to the maneuvering of such forces.
Finally, it needs to be reemphasized that House Bill 111 applies only to state appellate judges (Supreme Court, Superior Court, Commonwealth Court). It leaves intact the partisan electoral system in the county Courts of Common Pleas and the magisterial district courts, leaving the selection of these judges in the hands of the voters who presumably know them best. This appears to be a commonsense approach, at least in the short term.
While HB 111 should thus be enacted, it also seems reasonable to be gin thinking about the future. Nonpartisan elections for county and district courts would clearly be preferable to the partisan method. And perhaps at some point, if merit selection proves effective at the appellate level, Pennsylvanians may decide they want it applied more broadly.