judgesonmerit.org

While the judicial reform bills currently before the state legislature would replace elections with Merit Selection only for appellate-level judges, the upcoming local judicial elections — especially for Court of Common Pleas vacancies in Allegheny County and Philadelphia — demonstrate the political party gamesmanship that can define judicial elections and determine who reaches the bench.

In Pennsylvania, where elections are partisan, judicial candidates are listed by party affiliation.  This creates a risk that votes will go to a candidate based on party affiliation rather than on qualifications. In Allegheny County, according to the Pittsburgh Post-Gazette,  it is “commonly accepted that candidates generally need to be on the Democratic ticket to win.”  This is also true in Philadelphia County.  Candidates for the local courts can cross-file, that is, run on both the Republican and Democratic party tickets.

The Post-Gazette explains that two candidates who lost in the Democratic primary in May, but won spots on the Republican Party ticket, have decided to keep their names on the Republican ticket and simply not campaign.  This maneuver prevents the Republican Party from naming replacements for the two, and by not campaigning, the candidates virtually guarantee that the five who won in the Democratic primary will be elected onto the bench.  In essence, these two candidates are “taking one for the team,” and presumably will have their good sportsmanship remembered by the Democratic party in future elections.

Something similar happened in Philadelphia earlier this year.  As the Daily News reported:

[A]t an Aug. 25 party meeting, Republican leaders announced the withdrawal of the six judicial candidates on their ballot who had failed to also win the Democratic primary. And, they said, the GOP had decided to replace them on the Republican ballot with Democratic candidates who hadn’t won the Republican primary.

In other words, the Democratic team is now on both ballots and assured of victory.

So, here, too, political party maneuvering will determine who reaches the bench.  And this seems to be an example of the two competing parties actually working together — so much for partisan choice.

People who support the judicial election system often speak about the benefits of the democratic processes and letting the people choose.  But when political parties make ballot changes and have place holders on the ballot, do the voters really have a choice?  Aren’t the choices being made before anyone gets to the voting booth?

Is this really how we want to select judges?  Pennsylvania can do better than that.  While Merit Selection would not completely remove politics from the process (and may we be so bold as to posit that no system outside a dictatorship could), it would make a big improvement.

The November issue of Philadelphia Magazine includes a lengthy feature analyzing how judges get elected in Philadelphia.  Although the story focuses only on the process for electing local judges, it puts in sharp relief some of the major problems with using elections to pick judges: the randomness of the process and the money.

The article opens at the scene of the drawing of lots for ballot position:

It’s impossible to overstate the importance of ballot position when it comes to electing judges in Philadelphia. Nothing confirms our ignorance of judicial candidates as much as this: The first name we come to on the ballot is almost always one that is going to win.

After identifying some judges for reputations as not qualified to serve or for not possessing the requisite “judicial temperament,” the article hits the heart of the matter:

All of which raises the question: How do people like this end up on the bench in the first place? We know the answer, of course: We elect them. But if you’ve ever voted in a judicial election in Philadelphia (or anywhere in Pennsylvania), you also know that in most cases, you’re voting for little more than a name.

So, how do candidates achieve the required name recognition to win an election?  That’s where the campaign money comes in, and the article focuses on how candidates spend their money in Philadelphia judicial elections.  Candidates who want to win must “pony up to the real power brokers in our judicial elections — consultants. Their main job is to tell candidates which ward leaders should get their money.”  When the system works as designed, candidates pay the ward leaders for their get out the vote efforts.  Except, sometimes, according to the article, payments are made and services aren’t delivered as promised.

The author opines that this isn’t the real problem with the system, however:

[T]he bigger problem is the demand that our prospective judges — our judges — dive into a deal-making election process that becomes a test of whether they can close their eyes and hold their noses long enough to resurface with any moral equilibrium.

This is a good point that applies to all judicial elections, which emphasize fundraising and campaigning above skill and experience.  There’s got to be a better way.