Merit se­lec­tion of judges could work at all lev­els

The Hazleton Standard-Speaker - - OPINION - BY GENE MILLER GENE MILLER taught his­tor y at Penn State Ha­zle­ton from 1969 to 2004 and still re­sides in the area.

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.

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