Judicial Reform
The Committee of Seventy has historically supported replacing partisan elections of Pennsylvania’s appellate (Supreme, Superior and Commonwealth Courts) and trial judges with a merit appointment process. Pennsylvania is one of only a small handful of states that continues to elect all of its judges, a method of selection that has been in place since 1850. Revising the way judges are chosen requires an amendment to Article V, Section 13 of the state Constitution. This can occur only by passage in two consecutive sessions of the state Senate and House, followed by approval by the electorate in a statewide referendum vote.
Efforts to change the judicial selection process to an appointive system, particularly for appellate court judges, have been undertaken for decades by numerous statewide and local organizations. In addition to Seventy, these include Pennsylvanians for Modern Courts, the League of Women Voters, the Pennsylvania Bar Association and many local Bar Associations. An appointment process (sometimes called merit selection) typically involves recruitment and evaluation of judicial candidates by a bipartisan nominating commission, appointment from among the Commission’s nominees by the chief executive, followed the confirmation by the state Senate.
During the 1967-1968 Constitutional Convention, the 1968 primary election voters were presented with a new judicial article that retained partisan elections of judges but (a) established retention elections for sitting judges seeking to continue in office after initial ten year terms, and (b) set the stage for voters to decide separately the issue of appointive selection of appellate judges at the 1969 primary election. Although the judicial article passed, the voters rejected changing the method of selecting appellate court judges.
The next major opportunity for change came in 1988 when a blue-ribbon Commission chaired by current Superior Court Senior Judge Phyllis W. Beck issued a report recommending a mixed system of judicial selection: retaining partisan elections for local trial courts, except where county voters approve an appointment option, and changing the Constitution to provide for an appointive method of selecting appellate judges.
Since that time, proposed constitutional amendments for appointive selection of appellate court judges have surfaced in virtually every legislative session. Despite the support of several legislative leaders and Governors (including Governors Tom Ridge and Ed Rendell), there has been no movement forward.
Seventy has engaged in various public educational efforts on behalf of judicial selection reform including two publications: Judicial Selection Governance Study (PDF) (1983) and Who Chooses? The Need For Judicial Reform in Pennsylvania (PDF)(2000). These publications identified some of the problems inherent in partisan elections:
• Lack of relevant information about the candidates;
• Choice of candidates based upon factors unrelated to qualifications, such as geography, ethnicity, a popular name and ballot position;
• Public indifference to judicial elections;
• No formal evaluation process, thereby allowing anyone to run for the bench irrespective of qualifications or experience; and
• The insidious practice of raising money from sources that may well appear before the successful candidate when he/she is on the bench.
Appointing judges has several key advantages over elections:
• Formal evaluation of candidates by a nominating commission would elevate the importance of qualifications over other factors, thereby encouraging better candidates to seek judicial seats;
• Women and minorities stand an increased chance of selection when the Commission can look at the judiciary as a whole and identify current gaps;
• It would take away the need for candidates to raise money; and
• Voters would participate in a meaningful way by voting to retain judges after an initial term during which they would have developed a performance record relating to their decision-making and temperament.
Even if there were a groundswell of popular support for the concept of replacing partisan election of judges with a merit appointment process, many details would still need to be resolved. Examples include who chooses nominating commission members, who should serve on the nominating commission and whether Senate confirmation should be by majority or two-thirds vote. Appointment plans in other states vary greatly and can be looked to for guidance. However, it is likely that any plan for Pennsylvania would need to take its own unique political considerations into account.
Seventy’s most recent activity related to judicial selection reform occurred in June 2005 when we were asked by state Senators Tony Williams (D-Philadelphia) and Vincent Fumo (D-Philadelphia) to weigh in on their proposed constitutional amendment to replace partisan elections of the City’s Common Pleas and Municipal Court Judges with an appointive system. Seventy offered general support for the concept and offered recommendations for improvement of the proposal to facilitate passage in the General Assembly. We also expressed our strong view that this reform, although significant, was only the first step in what we hoped would be comprehensive judicial selection reform embracing all of Pennsylvania’s judges
Click here to see the Pennsylvanians for Modern Courts blog on the effort to bring merit selection to Pennsylvania's appellate courts.
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