judgesonmerit.org

“We put cash in the courtrooms and it’s just wrong.” This is how former Supreme Court Justice Sandra Day O’Connor opened last week’s conference at Fordham Law School studying the judiciary and the courts.

Justice O’Connor has neatly summed up the problem with using partisan elections to select appellate judges. This system requires would-be judges to raise money from lawyers, law firms and other organizations that are likely to appear before them in the future. Who else would be interested enough to fund these increasingly expensive campaigns?

Of course, almost every judge and every contributor says that campaign contributions have no influence in the courtroom. But studies show that the public (and even some judges) believes the opposite to be true. This perception leads to a lack of public confidence in the judiciary and the courts. If the public doesn’t believe that our courts are fair and impartial, the courts can’t effectively serve the public.

Let’s get the cash out of the courtrooms. It’s time for Merit Selection.

The current Merit Selection proposal applies only to the three statewide appellate courts — the Supreme Court, the Superior Court and the Commonwealth Court. Together, there are 31 appellate judges, out of a total of 1,048 judges in Pennsylvania. That’s it — we’re talking about changing the way we pick 31 judges.

We’re talking about the 31 judges who run in statewide elections, spending hundreds of thousands of dollars (and millions for the Supreme Court) on their campaigns. Elections for the local courts so far have been less expensive (although the costs for these are also steadily rising) than elections for the appellate courts and have resulted in more diverse judiciaries. In short, the problems inherent in electing judges are more evident at the level of the statewide appellate courts.

In addition, appellate judges have different jobs than the judges in our local trial courts (common pleas courts, magisterial district judge courts, municipal and traffic courts). Where the lower courts really are “people’s courts,” that hold trials on traffic accident cases, employment disputes, custody cases, landlord-tenant problems and personal injury claims, the appellate courts address questions about how the law was applied in those cases.

The appellate courts don’t hold trials and aren’t the places where people come to tell their side of the story. Instead, the appellate courts are where the lawyers make legal arguments about possible errors in the trial, including whether evidence was improperly presented, or the need to make changes in the applicable law. It makes sense to consider using different processes to select these different kinds of judges.

Changing the way we select appellate judges is a serious matter for the people of Pennsylvania to consider. But it’s not a wholesale change of the way we pick judges in the state. After all, the change would only affect 31 judges — less than 3 percent of the judges in Pennsylvania.

An opinion piece in The Harvard Crimson points out that four states are in the midst of partisan elections to pick judges for their highest courts. In calling for a move away from partisan election of judges, the author highlights the problem of “judicial candidates [receiving] contributions from firms or attorneys who will potentially present cases, or at least play a role, in their prospective courtrooms”

We agree with the author when she says that we need to reform the way we select judges. Merit Selection gets appellate judges out of the fundraising business. It will help to ensure a fair and impartial judiciary, free from the appearance of bias.

The Philadelphia Inquirer today published a letter from PMC Board Chair Bob Heim about the benefits of merit selection. Heim pointed out the importance of eliminating money from the process of choosing appellate judges: “a merit system would eliminate the impression that justice – which is supposed to be blind – can have its eyes opened by million-dollar campaign contributions.”

Heim’s letter also pointed out that the public continues to participate in the selection process through its representation on the nominating commission and the periodic retention elections to determine if judges stay on the bench. Finally, Heim noted that Pennsylvania can only change the way we pick appellate judges if the public votes to do so.