judgesonmerit.org

A Philadelphia Inquirer editorial about recent decisions by the Court of Judicial Discipline calls for a public referendum on changing the way we select judges in Pennsylvania:

[These cases] should serve as yet another rallying cry for voter referendums on judicial reform to switch to merit-based appointment for the city courts, as well as the state’s appellate bench.

We are advocating judicial selection reform only at the appellate level, but the Inquirer makes a good point about the relationship between the judicial selection system and the recent judicial discipline cases that have been in the news:

As cases like these expose judicial misconduct, citizens have to hope Harrisburg lawmakers will let voters decide on reforming judicial selection under the state constitution.

Merit-based appointment not only would focus on candidates’ qualifications more than political backing, but also would yield a more diverse bench.

Voters would get the chance to approve judges for additional terms, but they would have a better idea about those worth keeping and judges who should hang up their robes.

We hope that as Pennsylvanians continue to learn more about the courts and the judicial selection process, they will agree that it’s time to ask again whether we’re using the best system to choose our judges.

In an editorial criticizing a recent decision of the Court of Judicial Discipline, the Philadelphia Daily News indicts judicial elections:

It seems to us that anyone serious about being a judge should first take the time to review what’s expected of his behavior by reviewing the code, and respond by refraining either from bad behavior or from running for judge.

But that’s the problem with the current system, whereby judges are elected rather than appointed on their merits: The bar for candidacy, and success, is pretty low.

Right now in Pennsylvania, to run for judge — including a seat on the appellate courts — one need only be  a lawyer licensed in Pennsylvania and have resided in the state for a year.  Under Merit Selection, selection would focus on qualifications to serve, including legal experience, skill and reputation for fairness, impartiality and high ethical standards.

We need a system that emphasizes qualifications and that doesn’t give so much influence to irrelevant factors like ballot position, name recognition and fundraising prowess.

Earlier this week, Pennsylvanians for Modern Courts, along with 27 national, state and local reform groups, filed an amicus brief with the United States Supreme Court in the case of Caperton v. Massey. The question raised in this case is whether the due process clause requires judges in certain situations to recuse from cases involving campaign contributors. The brief argues that the essence of due process is a fair and impartial judge:

[P]recedent, and the history of the Due Process Clause, require that the Court find that judicial campaign contributions, in certain circumstances, create the reality or appearance of judicial bias in violation of the Due Process Clause.

The brief discusses the history of judicial selection and notes that because of the increasing expense of elections and the growing importance of campaign contributions “Judicial elections have created a crisis in public confidence.” The brief discusses the evolution of efforts in the states and nationally to address this crisis and improve the judicial selection process. Merit Selection was one of the reforms highlighted.

We are proud to be part of this brief and are eager to see how the Court will address this critical question. Keep checking for updates. To read more about this brief, visit Text and History; information about all the amici briefs filed in the case is available in this press release from Justice At Stake and the Brennan Center.

The Legal Intelligencer has published a commentary piece (subscription required) by PMC and PMCAction entitled “People Should Decide on Change of Judicial Selection Process.”  The piece focuses on the process required to amend the constitution to change how judges are selected.  This process requires the legislature to pass the amendment in two successive legislative sessions.  Second passage is followed by a public referendum.  That means the constitution can only be changed if the people of Pennsylvania vote for it to be changed.

We trust the people of Pennsylvania to make decisions about how to select appellate court judges:

Pennsylvanians for Modern Courts and PMCAction believe the people of Pennsylvania should have the opportunity to decide whether to change the way we select our appellate judges. It has been 40 years since the question was last put to the people, and, in those 40 years, judicial elections have changed dramatically. We believe that it’s time for Pennsylvanians to take a serious look at how appellate judges are selected and determine whether it’s working or if we need a change.

We wonder why our confidence in the public is not shared.  Many defenders of the current judicial election system claim they oppose change because they want to protect the franchise.  But this claim cannot be reconciled with their refusal to let the people vote on this critical issue.

It’s time to find a better way to select appellate court judges — a way that doesn’t rely on expensive campaigns and that reduces the influence of random and irrelevant factors like ballot position, name recognition and fundraising ability. We want the people of Pennsylvania to vote on whether or not to change the judicial selection process. We’re not afraid to hear their answer. We wonder why “defenders of the franchise” are afraid to let the people vote.

According to the News-Leader, two opponents of Missouri’s Merit Selection plan are taking that old adage to heart.  Although John Gentry and Sally Hargis opposed the campaign to bring Merit Selection to Greene County, MO this year, they each applied to serve on the Greene County nominating commission.  Governor Matt Blunt appointed Ms. Hargis to the local commission, but asked Mr. Gentry to serve on the appellate court nominating commission.  Mr. Gentry agreed.

It’s interesting that despite their opposition to the system, these individuals will now become part of it.  We wonder whether this will change their perceptions about how the system works.  If not, will they continue to condemn a system of which they are an integral part?