Mar 01 2010
Judicial Selection: What Would Our Founders Do?
This month’s ABA Journal makes a strong historical argument for merit selection, noting that from the time of our nation’s conception the founding fathers contemplated the acute importance of having a fair and impartial judiciary. To this end the founders constructed the Constitution to provide for a separation of powers between the branches of government to ensure that the judiciary remained above the political fray.
Yet politics have consistently managed to creep in. Judicial elections, in which candidates run on partisan tickets and whose campaigns are largely supported by political parties, lawyers, and law firms are perhaps the best example. These donors are likely to appear before that subsequently elected judge in court, creating an appearance of bias, if not outright bias itself. The ABA points out that judicial elections are uniquely an American problem, and one that threatens the credibility of our government:
No other nation in the world elects judges, yet 39 states elect at least some of their judges. The financial and political pressures of running for office inevitably undermine the public perception of a prospective judge’s integrity and ultimately create distrust of the fairness of our judicial system.
The need for merit selection of judges has been exacerbated by the out-of-control nature of judicial election fundraising in the modern day political environment:
Between 2000 and 2007, state candidates raised $167.8 million—more than double the total raised throughout the entire 1990s. Merit-based appointments via transparent, diverse nominating commissions are the best means of ensuring fair and impartial courts. A judicial system that requires judges to solicit contributions from interests appearing before the court risks removing the blindfold from the eyes of Lady Justice.
Pennsylvania is leading the pack in judicial candidate spending for a single seat in a state Supreme Court election, with over $4.6 million raised. Pennsylvania should take a lesson from history, change to a system of merit selection, and demand that money be checked at the courthouse door.
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