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Archive for the 'Our Perspective' Category

Jul 31 2013

Merit Selection Myths: "Elite Attorneys" Control Nominations

One of the most common criticisms of merit selection systems is that “elite” groups of attorneys are nominating judges. The frequently unstated implication is that since the nominators are lawyers, they are going to pick judges who will serve their interests rather than those of the general public.

There are a couple of problems with this argument. First, approximately three-quarters of the states (and the District of Columbia) use merit selection on some level, and all but a couple require there to be non-lawyers on their nominating commissions. Additionally, most states either require that their nominating commissions are composed of an equal number of lawyers and non-lawyers or require (or allow) non-lawyers to be the majority.

Second, the belief that the attorneys on nominating commissions vote based on self-interest is not supported by any evidence. Rather, it is simply a product of stereotypical conceptions of attorneys.

If one looks at the work the attorney and non-attorney members do on any given nominating commission, they will surely see that they nominate judges based upon merit. For example, the Supreme Court Nominating Commission in Kansas collects detailed applications, professional references and writing samples from candidates. The commissioners review all of this material and then conduct exhaustive background checks and interviews. It is only then that they make their decision on who they want to nominate.

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The process is similar in every other state that uses merit selection. And regardless of where you look, you will find that the commissions are made up of dedicated members who are willing to make personal sacrifices to fulfill their duties.

For example, members of the former Tennessee Judicial Nominating Commission would sometimes drive up to fourteen hours round-trip just to interview a candidate. Additionally, they would sacrifice family time, put their own work on hold, and use their vacation time from their regular employment to attend the unpaid Commission meetings. They did all this because they understood how important their work was.

If everyone was informed about the composition of nominating commissions, what type of work they do, and how hard the commissioners work, it is likely that very few people would claim that the commissions are just a bunch of “elite attorneys” choosing judges out of self-interest.

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Jun 11 2013

Factors in Judicial Elections: Party Affiliation, Race, Sex, and Geographic Location

In any given general election, voters tend to use party affiliation as a shortcut in making a decision because researching a candidate’s record and qualifications in depth can be difficult and time consuming. The use of this shortcut might have some merit in non-judicial elections, but voting the party line in a judicial election is a bad idea. Judges decide cases based on the facts and the law, not political considerations. Thus, they should not be chosen based on their political allegiances.

Of course, voters cannot vote along party lines in primary elections. Great, right?

Not so much. If voters cannot use the party shortcut, many will use another one. Granted, there are some voters who cast informed ballots, but many base their decisions on factors that have nothing to do with the qualifications of the candidates such as gender, ethnicity, and race.

But what if the candidates in a primary are of the same race, ethnicity, and gender? People will find other shortcuts. For example, some people will vote along geographic lines. We saw this in the May 21 primary. The Superior Court candidates, Judge Joe Waters and Judge Jack McVay, are from opposite sides of the state- Judge Waters lives in Philadelphia and Judge McVay resides in Allegheny County. Judge Waters won in Philadelphia and its three neighboring counties with at least 80 percent of the vote. Likewise, Judge McVay prevailed in Allegheny County and its four immediate neighboring counties with at least 84 percent of the vote in each.

Pennsylvanians deserve better than this. Merit selection is specifically designed to get the most qualified judges on the bench- potential candidates would be screened by a citizens’ nominating commission, nominated by the governor, and confirmed by the senate. Additionally, under a merit selection plan, citizens could weigh in on the candidates during the confirmation process. And after a judge served an initial term, voters would decide whether to keep him or her for another term in a uncontested, non-partisan election known as a retention election.

It’s time for Pennsylvania to move forward.

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Sep 28 2012

Goodbye, Goodman

Published by under Our Perspective

Guest Post by PMC & PMCAction Executive Director Lynn Marks

If you read any post on, please read Moving Forwardposted by outgoing PMC & PMCAction Deputy Director  Shira Goodman.  It sums up – in vintage Shira persuasion – the challenges of working for constitutional change.  Regular readers have seen Shira’s posts

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since the blog’s inception.   We have been fortunate to have her on our “lean and mean” team.  Shira has been a gift to

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the fair courts movement – both in Pennsylvania and nationally.


It is not easy to keep pushing for reform day after day when sometimes it seems elusive.  But if we don’t keep plugging away, only one thing is clear:  meaningful change will never happen.  We invite you to continue reading, to send in posts of your own, and most importantly, please spread the word that Pennsylvanians deserve to have the most fair and impartial courts possible.  We welcome all your suggestions, comments and critiques .  We need  — and want — you on the Reform Team.

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Sep 28 2012

Moving Forward

Published by under Our Perspective

Today is my final post as Deputy Director of PMC and PMCAction.  For the last ten years, I have worked with terrific leaders and partners to enable the public to decide whether there is a better way to choose appellate court judges.  I am convinced that Merit Selection is that better way and that, given the opportunity to vote on the question, the people of Pennsylvania would agree. To date, our leaders in Harrisburg have not given the people the right to decide the question.


Change is slow, especially constitutional change. That is appropriate; it should be difficult to amend the constitution.  Change should only occur after dialogue, debate and education, followed by a public referendum.  The trouble here is that those who oppose change fear the dialogue, debate and ultimate vote.


It is easy to do nothing and complain about the rising costs, increasing partisanship and growing divisiveness of judicial elections.  It is easy to sit back and opine that contributions to judicial campaigns must affect judicial decisions without working to change the system.  It is easy to decry the decreasing public  confidence that our courts are places

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of fairness and impartiality where all can come for justice. 


What is hard is to act. To work every day to educate, publish the facts, and make a case for change.  This is the hard work that PMC,PMCAction and the Reform Coalition are engaged in.  We are committed to continuing that work until the leaders in Harrisburg give the public the chance to decide for themselves whether there is a better way to choose our appellate court judges.


Although I am leaving PMC and PMCAction, I am not leaving the growing group of Pennsylvanians who want change.  I will continue to support the work of the Reform Coalition, and I look forward to the day when this blog is advertising an upcoming public referendum on amending the

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constitution to change the way we choose judges.  That day will come.

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Sep 21 2012

Threats of Non-Retention Undermine Judicial Independence

Published by under Our Perspective

An independent judiciary is an integral part of a well-functioning society. The judiciary acts as a check on the powers of both the legislature and the executive. In order to function effectively, judges must be free to decide cases based on the law rather than political considerations or popular will. While judges must be held accountable for their conduct, threatening removal for individual decisions is counterproductive and undermines the ability of judges to do their jobs.

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In Pennsylvania, appellate judges are initially elected in partisan elections to ten year terms. After their terms

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expire, they may stand for retention in uncontested, nonpartisan elections. Retention elections are an opportunity for the public to vote to retain judges based on their performance over the course of their tenure on the bench. Accordingly, judges are accountable to the voters and continue to serve at the will of the people.

However, retention should not be used as a weapon or threat to bully judges into ruling a certain way on specific cases. Judges are not politicians; they do not have constituencies, nor do they make decisions on individual cases based on political expediency.  Their role is to act as a fair and impartial adjudicator. Threatening non-retention demonstrates a fundamental misunderstanding of the role of the judiciary, undermines the court’s ability Buy Viagra Viagra to do its job, and does more harm than good.

Additionally, an independent judiciary must be free to make decisions without regard to popular opinion. Judges do not have constituents for a reason; in order to effectively do their jobs, judges have to focus on interpreting the law without regard to whether their decisions would appeal to the masses.

This is not to say that the people are not free to express their

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dissatisfaction with the judiciary or individual decisions made by specific judges. However, the appellate process is the correct mechanism to address issues with individual decisions, not campaigning (or threatening to campaign) against retention.

Recently, a Tea Party affiliated PAC issued a press release “warn[ing] that it will organize to defeat Pennsylvania Supreme Court Justice Ron Castille, a Republican, and PA Supreme Court Justice Max Baer, a Democrat, in their respective 2013 retention races, if Voter ID is not implemented in the November, 2012 General Election.” Threats like this from any group undermine the foundation of our judicial system.

Retention is a tool to evaluate the performance of judges over the course of their term, not to bully them into deciding a case in a particular way. This remains true regardless of the group that is threatening non-retention or the subject matter of any particular case.


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Jul 10 2012

"Judge-itis" Hurts Integrity of Judicial System

Published by under Our Perspective

A column in the Legal Intelligencer by legal ethics expert Samuel C. Stretton argues that “judge-itis” or “black robe disease” undermines the integrity of the judicial system by eroding the mutual trust between lawyers, litigants, and judges.

Stretton defines a judge suffering from judge-itis as one “who thinks he or she is so important that he or she can act unilaterally and arbitrarily”. Symptoms include tardiness in taking the bench, rudeness to lawyers and litigants appearing in front of them, proselytizing from the bench and socializing with members of the bar in such a way as to compromise their judicial integrity.  The cure for this ailment, according to Stretton, is to “elect judges with more experience, wisdom and maturity.”

It is indisputable that misbehaving judges undermine the integrity, efficiency and public trust in the judicial system. However, the answer is not to continue with the current system of judicial elections. Judicial elections can result in the inexperienced candidates (and problematic judges) that Stretton describes because there are no criteria that govern who can run for judge. Merit Selection of judges green smoke electronic cigarette puts electronic cigarette liquid salem potential judges through an intensive vetting process by a bipartisan nominating commission made up of both attorney and non-attorney members. In addition, Merit Selection also establishes criteria, including years of legal experience, reputation for honesty and integrity, and service to the community, which

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applicants must satisfy to be recommended by the nominating commission as part of the list of candidates prepared for the governor.

Merit Selection minimizes the potential for inexperienced judges to get on the bench which reduces the likelihood of judge-itis. Further, Merit Selection limits the influence of special interests on the judicial selection process, making it less likely that a judge will feel either entitled to his judgeship or beholden to her constituents.

As Stretton states, “The best judicial officers are those who struggle every day to be fair and do justice. These men and women recognize their limitations but act with fairness, an interest in learning and humility.” Merit Selection is the best process to ensure that judges are capable of and committed to fulfilling their roles as arbiters of justice.

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May 23 2012

Philadelphia Daily News: Merit Selection Legislation Should be “Fast-Tracked”

According to the Philadelphia Daily News, the indictment and suspension of Justice Joan Orie Melvin “puts another big fat bow on the move to have judges appointed on merit rather than elected”.  Justice Orie Melvin was indicted last week on charges that she used her state-funded judicial staff on her 2003 and 2009 campaigns for the Pennsylvania Supreme Court. The charges cast a “dark shadow” over the Court and serve to decrease public confidence in the Pennsylvania judicial system.

The editorial points out that the Pennsylvania judicial system has weathered a number of scandals in the past few years that “have been testament to the dangers of subjecting judges to a partisan political process that requires lots of money to succeed.” Requiring judges to campaign for their seats creates the appearance of impropriety since they must solicit campaign contributions from individuals and organizations that often appear in front of them.

Additionally, as the grand jury presentment regarding Justice Orie Melvin demonstrates, campaigning is a full time job.  “The testimony in this latest grand jury report paints a disheartening picture of a judicial office, not as the sanctuary of justice, fairness and responsibility, but, rather, as a never-ending machine of raising money, campaigning and doing whatever is necessary to stay in office.” Merit Selection would allow judges to focus on their judicial and administrative duties rather than on the requirements of a campaign.

The time is ripe for Merit Selection. We agree with the Daily News that the House Judiciary Committee members should take whatever steps necessary to fast-track the pending legislation and give Pennsylvanians the right to choose whether we change the way we select judges.

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Apr 23 2012

LA Times: Judges Should Not Be Politicians

Published by under Our Perspective

An editorial in the LA Times endorsing certain incumbent judges argued that the election of judges is “most definitely different” than other elected officials. Specifically, the editorial acknowledges that the mark of a good jurist is not popularity, but the ability to be fair and impartial in their administration of justice and interpretation of the legal code. Judges cannot be effective unless there is sufficient independence in the system that “they can preside over cases without seeing each big-moneyed litigant as a potential donor or each losing lawyer as a revenge-seeking challenger.”

 Although the editorial does not go so far as to argue that popular election of judges should be replaced by another mode of judicial selection, we believe that these arguments go to the core of the need for merit selection. Because judges are substantively different than other elected officials, it follows that they should be selected differently. Judges fill a different role than members of the legislative and executive branch and must not allow themselves to be swayed by outside interests. In order to be effective, judges must be free from the

pressures of politics, and replacing popular elections with merit selection would be a major step toward accomplishing that goal.

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Apr 16 2012

Pennsylvanians Deserve the Facts

Published by under Our Perspective

The Sunday Currents Section of the Philadelphia Inquirer

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features a letter to the editor (scroll to the bottom) from PMC. The letter responds to last week’s op-ed by Professor Chris Bonneau, which purported to be a critique of Merit Selection but which really only raised questions about retention elections.

PMC pointed out that Merit Selection brings about real results that are desired by the people: “it is beyond dispute that merit selection, by eliminating the need for judicial candidates to raise funds from litigants and lawyers who may come before them, stops the flow of campaign money from those who may later be in the courtroom to the future judges who will decide their cases.”  PMC further explained that the retention elections Prof. Bonneau criticizes are part of Pennsylvania’s current elective system: all Common Pleas and Appellate Court judges are elected for ten year terms and then may stand for retention in uncontested, nonpartisan elections every ten years thereafter until they reach the age of mandatory retirement.

The key point PMC makes is this: “Pennsylvanians. . . deserve the facts about elections and merit selection,” and they deserve the opportunity to vote in a referendum election about whether to change the constitution to implement Merit Selection for the appellate courts. PMC wants the legislature to let the people decide this question, and we want the people to have good information and facts on which to base this decision.

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Jan 27 2012

Judges Should Let Opinions Speak for Them

Published by under Our Perspective

The Pittsburgh Post-Gazette reports that controversy is brewing about Supreme Court Justice Max Baer’s comments about the Supreme Court’s forthcoming opinion in the redistricting case. 

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The Court issued an order in the case late Wednesday, but the opinion is not expected until some time next week.  Justice Baer made comments to the press about what he anticipated would be included in the opinion and also opined that due to timing constraints, it was likely that the 2001 districting maps would control the upcoming election. The State Republican Party has issued a statement criticizing Justice Baer for commenting on the case in advance of the opinion being issued and charging that he has violated the Code of Judicial Conduct, which prohibits judges from speaking out on pending cases.


This incident raises the issue of whether judges should communicate about their decisions outside of their written opinions.  We believe judges should let their opinions speak for them.  Judges and courts write opinions for the very purpose of explaining their decisions; this provides clarity and equal access to the decision and the reasoning underlying it.  The opinion should be the only way judges speak to the public about their decisions.

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