Oct 25 2013
Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, recently appeared on WITF’s “Smart Talk” radio program to discuss why Pennsylvania should pick judges through merit selection.
At one point in the program, the host, Scott LaMar, asked Marks “what makes a good judge?” Marks responded that good judges have extensive legal knowledge and experience, even temperaments, and reputations for ethical behavior both on and off the bench. Additionally, unlike other public officials, judges are not representatives of the people. Thus, good judges never base their decisions on public opinion like a legislator or a governor would. Instead, they decide cases based upon the facts and the law.
One of the major problems with contested elections is that they are incompatible with the role of judges as impartial arbitrators and “turn judges into politicians,” said Marks. This occurs because judges, particularly at the appellate level, must raise large sums of money to win. Most of this money comes from lawyers and special interest groups who regularly appear in court, and judges are not required to recuse themselves from cases involving individuals that have donated to their campaigns.
“I am not saying that judges are corrupt and are making decisions based on where [their campaign contributions] came from,” said Marks, but “most Pennsylvanians and most Americans believe that campaign contributions affect a way a judge decides cases.”
This is very problematic because the cornerstone of the judiciary is fairness, both real and perceived. If the people believe that judges can be bought, half of that cornerstone is ripped from the foundation of the justice system. Merit selection, however, preserves public confidence in the judiciary by eliminating most of the money from the judicial selection process.
The problems associated with judicial elections are not limited to perceptions of impropriety. Elections also limit the pool of qualified judicial candidates. According to Marks, many qualified lawyers don’t bother running for judicial office because they don’t have the campaign skills, access to money, or connections required to win. This is exemplified by the fact that only one Democrat ran in the last Supreme Court primary race. Under a merit selection system, however, candidates do not have to campaign to get into office. Instead, they apply for a judicial position, and they will be appointed if they are the most qualified candidate.
Additionally, voter turnout in judicial elections is almost always very low. This may be due, at least in part, to the fact that it is difficult for voters to get the information necessary to make informed decisions, said Marks. Most media outlets refuse to cover judicial races in much detail, if at all, and most campaign advertisements contain little information other than generic recitations that the candidate is “fair-minded” and “tough on crime.”
In contrast, members of a citizens’ nominating commission thoroughly vet the candidates in a merit selection system. Specifically, they review applications, hold interviews and public hearings, read court opinions and other legal documents, and do other things that the general public simply does not have the time or resources to do. The commission then sends a list of nominees to the governor, who then appoints one of them, subject to Senate confirmation. Four years later, the appointee faces the voters in an uncontested retention election. Thus, the people retain the final say over which judges stay and which ones go.
It is also important to understand that merit selection does not amount to “taking away the power of the people to vote for judges” (a common accusation). A constitutional amendment is required to change the way in which judges in Pennsylvania are selected, so the people would be the ones deciding whether they want to embrace merit selection.