judgesonmerit.org

In an excellent op-ed piece in yesterday’s Pittsburgh Post-Gazette, PA Supreme Court Justice Debra Todd contends that just as Lady Justice is Nonpartisan, so too are the justices of the Pennsylvania Supreme Court immune from partisan politics when ruling from the bench. We agree with Justice Todd that partisan politics should have no place in a court of justice. We trust, as does Justice Todd, that most judges are able to maintain impartiality in their decisions.

Yet while we share her dismay at the fact that so much attention during the recent election was devoted to the political balance on the bench, and agree this reflects a “fundamental misunderstanding of the judicial branch of government in Pennsylvania,” we think it has even more to do with the way we select judges in our state. If we expect our highest judicial officers to completely separate their political affiliation from their judicial decision-making, why do we elect them in hotly-contested, extravagantly-funded partisan elections?

Although, as Justice Todd says, “vacancies on the courts are filled by judicial elections . . . in 39 other states,” that widely-quoted statistic is misleading as it encompasses all levels of the courts and includes those states that use retention elections.  In fact, Pennsylvania is one of only six states, along with West Virginia, Alabama, Texas, Illinois, and Louisiana, that elects all of its judges, from Supreme Court down, in contested, partisan elections where judges run under party labels.

While we hope that no one party exerts political control of the court, is the public’s perception that political affiliation influences judges not the inevitable outcome of a system in which so many vote for judges strictly along party lines, often by pulling a straight-party lever? One can’t blame the public and the media for assuming the court is a political institution while we continue to select our judges in partisan elections.

Nor should we be surprised that Pennsylvanians “conflate[ ] the election of justices . . . with the role of service as a justice.” Why else would political parties spend millions on getting their candidates into office? The Republican Party, for example, spent untold hundreds of thousands of dollars paying for all of Orie Melvin’s TV commercials. In fact, both parties emphasized the importance of the Supreme Court election to party members because of the upcoming reapportionment of legislative districts.

In the Justice’s own eloquent words:

The statue of Lady Justice, whether displayed as the Greek goddess Themis or the Roman goddess Justitia, is often depicted holding the balanced scales of justice and wearing a blindfold. This depiction of Lady Justice embodies the ideal that justice must be rendered without reference to money, power, fear, favor, identity or political party. As a sitting justice of the Supreme Court of Pennsylvania, I am confident that Lady Justice is neither a card-carrying Republican — nor a Democrat.

Lady Justice is certainly neither a Republican nor a Democrat. But we highly doubt that she got her particular spot on the pantheon of gods in a partisan election. Short of a divine intervention, we think merit selection of appellate judges is a far better alternative to partisan elections if we seek Justice Todd’s ideal of a truly nonpartisan court.