Apr 23 2008

Myths About Merit Selection

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As the campaign for Merit Selection progresses, we hear some inaccurate arguments repeated by those who oppose Merit Selection. In an effort to set the record straight, we’ll reveal the truth and clear up these myths.

Myth #1: Merit Selection is Taking Away My Right to Vote for Judges

No one can take away your right to vote. We can only get a Merit Selection system for the appellate courts if the people of Pennsylvania vote for it. This is not something the legislature or Governor can impose on the people. Instead, the people have to vote for it in a referendum.

Additionally, Merit Selection gives the people the ultimate decision about whether a judge stays on the bench. After a judge’s initial four years on the bench, the public votes on whether the judge should be retained. If the judge wins retention, he or she will stand for retention before the public every ten years.

Myth #2: Merit Selection Means a Bunch of Lawyers Will Be Picking Our Appellate Judges

The appellate court nominating commission will be made up of lawyers and non-lawyers. Five public members are appointed by civic groups, unions, business organizations, non-lawyer professional associations, and public safety organizations. These groups can appoint anyone of their choosing — no lawyers required. Also, the Governor is required to include two non-lawyers in his appointments.

There will be a law school dean on the nominating commission, and some lawyers appointed by the Governor and the legislative leaders. But it’s a mix, and like other commissions that currently exist, the non-lawyers will bring a valuable perspective to the screening and evaluation of judicial candidates.

Myth #3 Merit Selection is Just Like the Process We Use to Fill Interim Court Vacancies

The interim appointment process — how vacancies are filled on courts between elections — is part and parcel of the electoral process. It is nothing like Merit Selection.

Currently, we have four vacancies on our appellate courts — one on the Supreme Court, one on the Commonwealth Court and two on the Superior Court. Filling these vacancies requires nomination by the Governor and confirmation by the Senate. And one more thing — a promise by the candidates not to run for full terms on these courts in the next elections. This is because the process is designed to prevent one political party from getting an advantage over the other in the next election. It’s not designed to get the most qualified people on the bench as quickly as possible.

The interim appointment process does not require screening by an independent citizens nominating commission. Merit Selection does. The interim appointment process does not give the people an opportunity to evaluate how a judge did during an initial term. Merit Selection gives the people this chance through the retention process.

The interim appointment process is inextricably tied to the electoral system. Merit Selection is a different way of picking appellate court judges.

Myth #4 Merit Selection is Just Like the Federal System for Selecting Judges

The federal system of selecting judges is a pure appointment system. Although many qualified judges reach the bench this way, the federal system isn’t Merit Selection.

First of all, under the federal system, the president can appoint anyone of his/her choosing. That nominee is then subject to Senate confirmation, and will serve for life or good behavior.

Absent from this system is a key piece of Merit Selection: the constitutionally-mandated role of the nominating commission, a nonpartisan citizen-based commission charged with evaluating candidates for the appellate courts.

Under Merit Selection, the Governor is required to make a nomination from the commission’s list of highly qualified candidates. No such requirement exists in the federal system. Although Pennsylvania has a bi-partisan nominating commission to advise our United States Senators on possible federal court appointments, its recommendations are not binding on the president.

Merit Selection also provides that following a brief term on the bench, a judge would stand before the public in a nonpartisan, yes/no retention election. The federal system doesn’t have any sort of retention election; once confirmed, federal judges serve for life or good behavior.

Myth #5: All Merit Selection Systems Are the Same

Someone once said there as many different judicial selection systems as there are snowflakes. While that’s a bit of an exaggeration, it’s true that judicial selection systems differ greatly depending on where you are. This is also true of Merit Selection systems.

The proposal to implement Merit Selection for Pennsylvania’s appellate courts incorporates the best parts of other states’ systems, and corrects aspects of those systems that are less successful. We outline below how the proposal for Pennsylvania’s appellate courts differs from the systems used by other states. (Visit the American Judicature Society to learn more about other Merit Selection systems.)

The Nominating Commission is Appointed by Elected Officials and Non-elected Entities
Like other states’ nominating commissions, elected officials like the Governor and legislative leaders have a role in appointing members of the nominating commission. However, under the unique Pennsylvania proposal, non-elected entities, including civic organizations, law school deans, unions, business organizations, nonlawyer professional associations and public safety organizations also appoint members to the nominating commission.

The Governor Cannot Request Additional Lists or Additional Names of Recommended Candidates from the Nominating Commission
Under the proposed plan, the Governor is bound to nominate from the nominating commission’s list of recommended candidates. The Governor may not reject the list or request that other names be added to it. This is different from the Merit Selection systems in place in several states, including Delaware, Massachusetts, Minnesota and Tennessee.

The Process Involves a Role for the Governor, the Senate and the Public
Under the Pennsylvania proposal, an appellate judge can only be seated after being nominated by the Governor and confirmed by the Senate. The judge will serve a short initial term of four years, after which he or she must stand before the public in a retention election. If retained, the judge may serve a ten year term, after which he or she will again be eligible to stand for retention.

Several states don’t require legislative confirmation. These include Tennessee, Wyoming, South Dakota, and Kansas. In Massachusetts and Rhode Island, judges do not stand for retention.

Merit Selection systems are as varied and unique as the states that adopt them. We think the one being considered for Pennsylvania’s appellate courts offers a better way to select appellate judges.

Myth #6: Merit Selection supporters want to do away with all elections.

This is a favorite scare tactic of opponents of Merit Selection, usually worded as a question; “While we’re at it, why not replace election of the governor or the legislature with Merit Selection too?” It suggests, falsely, that supporters of Merit Selection of appellate judges plan to somehow create a world where nobody votes for anything, and the entire government is appointed rather than elected.

The truth is that Merit Selection supporters aren’t trying to replace election of all public officials. We think that Merit Selection is a better way to select appellate judges because judges are different from other elected officials. Judges are sworn to act impartially, to apply the law without regard for personal preference, political pressure or the interests of campaign contributors.

Impartiality isn’t a requirement for other officials, like governors, senators, representatives and mayors. Candidates for those offices make promises in order to raise money and win votes. Donors give money to these campaigns with the expectation that the candidates will vote or act a certain way if elected.

Because the judiciary has to place the law above all other considerations, it’s different from the other branches of government. It doesn’t make sense to treat judges like political officials up until the moment they start doing their jobs. Instead, we should be treating judges differently from the moment they seek to join the bench.

Merit Selection supporters want to ensure a fair, impartial judiciary for all citizens. To that end, we’re seeking to change only how appellate judges are selected. Don’t let anyone tell you any different.

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