Judicial elections are too costly — in multiple ways
In a letter Andrew Jackson sent his nephew in 1822, the nation’s seventh president reasoned that “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.” How would that virtue be obtained? By directly electing judges, perhaps?
Legal scholar Caleb Nelson explained 30 years ago how Jacksonian populists hoped to influence the body politic. Seen as having been rooted in America’s founding, wrote Nelson, “the elective judiciary was intended to enlist some officials — judges — in the process of weakening officialdom as a whole.”
How much weaker? As Jed Shugerman explained in his
2010 study on the rise of judicial elections, 19th-century “reformers got the results they wanted: elected judges struck down many more state laws than had their appointed predecessors.” This, considering the numerous financial crises (“panics”) between 1837 and 1848, led many states to want a further check on the judiciary, and that check was the people.
Pennsylvania adopted such a judicial check by amendment in 1847. Since then, views of the world have evolved in many areas, the seriousness with which Americans take elections as a whole being one of them.
Just think, over 70% of registered voters voted in the presidential election of 1840. After over a century-and-a-half of milquetoast turnout, it took $14.4 billion of advertising vitriol in 2020 to approach those numbers, with just under 67% turning out to vote in our most recent presidential election. The numbers in nonpresidential election years are far lower. For judicial elections, lower still, and Pennsylvania is evidence of that fact.
In the 2021 judicial elections, Keystone State Supreme and Superior Court candidates saw 2.7 million votes cast across parties for each race. The following year, about 5.3 million Pennsylvanians cast ballots for governor.
Based on dozens of conversations with Pennsylvanians of varying walks of life, not knowing who the candidates are or not seeing the judiciary as all that important is why many Pennsylvanians choose to not vote for judges, even the highest appellate ones.
State Supreme Court personnel costs were a little over $21 million this year. So far this election cycle, about $4.5 million has been spent on advertising. With about a quarter of the amount of the total personnel budget having been spent might lead one to wonder just how nonpartisan the process is, especially with so few people either knowing or caring about judicial elections.
What to do?
Pennsylvania could switch to gubernatorial appointment. After so many years of partisan elections, however, that shift might prove too great.
What about a hybrid, like the one Missouri introduced in 1940? For that state’s higher appellate courts, an Appellate Judicial Commission selects the candidates. Three lawyers elected by the state bar association and three citizens selected by the governor are the ordinary commission members, with an equal number of members representing each of the geographic appellate districts. The state supreme court chief judge, also on the commission, serves as chairperson.
The commission selects a slate of qualified judicial candidates for each available seat. The governor then chooses one of those candidates. He or she is then up for a retention vote by the general public after one year of service.
First suggested in 1940, there have been several attempts to introduce some version of the Missouri plan in Pennsylvania. Notably, a 1982 Pennsylvania Bar Association survey revealed that 69% of legal practitioners at the time preferred the Missouri plan over partisan judicial elections. More recent governors, like Ridge and Rendell, have championed such a plan.
One can see why, too. With a Missouri-style plan, a governor would not only have more of a say by choosing from, say, three judicial candidates for a given seat, but would also have a say in almost half of the commission. Too much of the check on the executive by the people of the commonwealth being eliminated?
Perhaps. So, why not just elect the commission?
Commissioners could run without political affiliation for a seat in their region of the state. A three-year term, with no consecutive terms being allowed? The chief judge of the state Supreme Court might lead the committee, or one of the members who is in his or her third year might be selected by the other commission members.
A consensus on these details is needed. So, too, is more seriousness and attention needed for the selection of our highest court judges, for justice’s sake. For this year, I must implore voters like you: Take the time to look at the candidates. Consider various issues. Take the time to care. We expect judges to.