judgesonmerit.org

Amidst the coverage of recent interim appointments to Pennsylvania’s appellate courts, we’ve tried to make it clear that the system used to select these judges is not Merit Selection. A recent report on the appointments from Radio PA correspondent Matt Paul features PMC Associate Director Shira Goodman, who explains how Merit Selection differs from the highly-politicized appointment process. You can listen to the mp3 here.

Governor Rendell’s second slate of nominees to fill interim vacancies on the appellate courts has been confirmed by the state Senate. Philadelphia Court of Common Pleas Judge Jane Cutler Greenspan will serve on the Supreme Court; McKean County President Judge John Cleland and Northampton County President Judge Robert Freedberg will serve on the Superior Court; and Philadelphia lawyer Johnny Butler will serve on the Commonwealth Court. The judges will serve until January 2010, when new judges elected in the fall 2009 elections will be sworn in. The newly confirmed judges each have pledged not to run for full terms in the 2009 elections.

Filling these vacancies was a long and politically contentious process. Although the new judges, like the previous nominees, are highly regarded, the process by which they came to the bench was not Merit Selection. There are two major differences between the current interim appointment process and Merit Selection.

First, the current process does not use an independent nominating commission to evaluate candidates and recommend the most qualified to the Governor. Instead, the Governor, working with legislative leaders, devises a list of candidates.

Second, the current process does not involve a role for the public. Under Merit Selection, after the judge serves for a brief initial term, the public votes in a retention election on whether or not the judge should continue in office. By contrast, in the current interim appointment process, the judges serve only for a short time and pledge not to seek a full term. This is the political deal that must be made to secure confirmation, and it deprives the public of an opportunity to evaluate the judges and of longer service by good judges.

We are pleased that the long vacant appellate court seats will be filled, but we regret that we are still using a political process that is part and parcel of the electoral system to do so.

Late last week, Governor Rendell nominated a new slate to fill interim vacancies on Pennsylvania’s appellate courts. From early reports, it seems likely that the new slate — Philadelphia Common Pleas Court Judge Jane Cutler Greenspan for the Supreme Court, Northampton County President Judge Robert A. Freedberg and McKean County President Judge John M. Cleland for Superior Court, and Philadelphia lawyer Johnny J. Butler for Comonwealth Court — will be confirmed in the near future. This follows months of political wrangling and the Senate’s rejection of the Governor’s first slate of nominees.

PMC/PMCAction Executive Director Lynn Marks warns: “This interim appointment process should not be confused with what is known as a merit selection system just because both require nomination by the Governor and Senate confirmation. . . . They are both very different and the jockeying we have seen for the last few months is another example of why we should change the way we appoint appellate judges.”

Now that the Pennsylvania Senate has officially rejected Governor Rendell’s nominations to fill four vacant appellate judgeships, calls are coming for increased diversity among the judges on the appellate bench. Senate Republicans cited lack of diversity in the nominees as one reason why they rejected the slate. The Black Legislative Caucus is calling on the Governor to nominate Black and Latino candidates to fill the seats.

Supporters of Merit Selection are keenly aware of the lack of diversity on the appellate courts in Pennsylvania. Of 31 judges on the three statewide courts, only two are judges of color (one on Superior Court and one on Commonwealth Court). No minorities sit on the Supreme Court. Only one African American has ever been elected to the Supreme Court, and there have been no justices or appellate judges of Hispanic or Asian descent.

In addition, historically most appellate judges have come from the Philadelphia and Pittsburgh areas. This stems in large part from the difficulty in running a statewide campaign and the need for broad support from big population centers. Although county of residence is essentially irrelevant to one’s qualifications to serve as an appellate judge, it has been an important predictor of electoral success.

A diverse judiciary is good for the state, and it’s good for justice. Pennsylvanians can feel confident that their viewpoints will be fairly considered when the judiciary includes judges who come from diverse backgrounds and different parts of the Commonwealth and who bring many different experiences to the bench. Merit Selection — which offers pathways to the appellate bench for qualified jurists from a variety of areas and backgrounds — can help Pennsylvania achieve this.

When there’s an interim or midterm vacancy on any court in Pennsylvania, it is filled by the Governor making a nomination that is subject to Senate confirmation. Usually for appellate seats, the nominee agrees not to run in the next judicial election for a full term on the court and, therefore, sits on the bench for a short period of time.

This is because the interim appointment process is actually part of the electoral system and is designed to keep either political party from gaining too great an advantage in the next election. Thus, good candidates must promise not to run in the future, lest they get an unfair advantage of running while already a member of an appellate court.

There currently are four vacancies on the appellate courts — 2 on the Supreme Court and one each on the Superior and Commonwealth Courts. This week, the Governor’s nominees for those vacancies were all rejected by the Senate.

According to news reports, the Governor and Senate leaders met to discuss possible candidates for the vacancies, but the ultimate slate of nominees did not include individuals favored by the Senate leadership. As a result, after several months, the Senate voted all four nominees down, without even holding hearings.

So, we’re still left with four vacancies on the appellate courts, and the vacancy on the Supreme Court has the added problem of leaving a six member court that could result in 3-3 decisions. By the time the politicians meet again, new nominations are made, hearings are held and votes are taken, the new judges might have less than a year to serve.

If we had a Merit Selection system in place, these vacancies would be filled through the process involving screening by an independent citizens nominating commission, nomination by the Governor, and confirmation by the Senate. After four years on the bench, the judges would stand before the public in a retention election. Good judges would have the opportunity to stay on the bench for a full ten-year term. Judges the public is dissatisfied with would be removed, and the process would begin again to fill the vacancies.

Merit Selection is designed to get the most qualified judges on the bench in an expedient manner. It’s not designed to position political parties for upcoming elections. That’s why Merit Selection works.

In an editorial addressing Governor Rendell’s stalled interim judicial appointments, Scranton’s Times-Tribune points out that judicial elections make it difficult for qualified candidates from many areas of Pennsylvania to reach the appellate bench.

Due to simple electoral math, it is very difficult for any candidate who is not from the Philadelphia area or Allegheny County to be elected to the appellate courts. Diversification of the appellate courts is one of the reasons that the state should switch to a system of merit selection.

Diversity on the bench, including geographic, racial, ethnic, gender and professional diversity, is one of many important characteristics of a fair and impartial justice system. It’s something that’s elections have not produced on Pennsylvania’s appellate courts.

We agree with the Times-Tribune that it’s time for Pennsylvania’s legislators to “get the ball rolling on merit selection.”

In a letter to the editor published in today’s Philadelphia Inquirer, Pennsylvanians for Modern Courts and PMCA Executive Director Lynn Marks explains how Merit Selection of appellate judges differs from the interim judicial appointments currently stalled in the state Senate.

Opponents of Merit Selection like to argue that the struggle over Governor Rendell’s nominations somehow makes Merit Selection impractical or unworkable. In reality, the two systems are very different, and problems with the interim appointment process don’t undermine the value of Merit Selection.

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 #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.

Keep visiting JudgesOnMerit.org to learn the truth about Merit Selection.