1. Justifying judicial elections based on an “almost mythical” democratic ideal finds little support from the goals of our founding fathers or the practices of other democratic nations.
2. To say that judges base decisions primarily on personal or political preferences ignores an overwhelmingly constraining force: the law.
3. Although judicial decisions affect public policy, transforming judges into political representatives has the undesirable result of turning the judiciary into a “super legislature,” one which renders the separation of powers meaningless.
4. Despite accusations to the contrary, a 1993 study indicated that only 1% of nominating commissioners said political influences were “always part of commission deliberations;” 48% said they never were.
5. Recent research based on judicial evaluations and surveys demonstrates that “merit selected judges are superior in terms of fairness, competence, and overall quality.”

PMC applauds Caufield for her articulate and well-researched contribution to the Arkansas Law Review and agrees that merit selection is the best option for choosing our judges.

According to the Brennan Center for Justice at NYU Law School, “Judicial election spending has spiraled out of control in the past decade, with high court candidates raising $206.9 million in 2000-2009, more than double the $83.3 million raised in the 1990s.” While clearer recusal standards will help to avoid corrupt results and hopefully regain the trust of the public, they do not address the root of the problem – that judicial elections, and their reliance on campaign contributions, create a climate of distrust. When candidates must raise money to run for the bench, elected judges may feel indebted to their contributors, and their decisions may affect the availability of future campaign funds. Furthermore, when the public watches a judge, who benefited from campaign contributions, rule in favor of that donor, trust is eroded regardless of the merits of the decision.  A June 15th New York Times editorial asked “Can Justice Be Bought?” Stricter recusal standards offer only part of the answer. Moving away from judicial elections and instead supporting a system that prioritizes a judge’s ability to analyze the law over his or her ability to raise money provides a more workable solution.

Marks highlighted the need for merit selection for appellate courts explaining, “judges should resolve disputes based on evidence – they’re not supposed to be responsive to public pressure.” Contrary to assertions that appointment of judges through merit selection is undemocratic, merit selection actually requires that the public support it. As Marks said, “Merit selection requires a change in the Constitution, so a bill must… go before the public. So when people say, ‘oh, you’re changing the way we vote’ — yes, but only if the people want to change the way we vote.”

It has been long my contention that electing judges, especially statewide, is a joke. It strikes me even more so today. Pennsylvanians are filling six appellate judgeships this year. Yesterday’s ballot carried 22 candidates. I mean, come on.

First of all, it’s a crapshoot. Nobody’s heard of these people. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.

Then, Baer moves on to the money problem:

Also, judicial races are unseemly. Campaigns are funded by lawyers who later appear before the judges they help elect. So even apart from the pin-the-tail-on-the-donkey (or elephant) aspect of the process, electing judges begs for politics to influence justice.

Just the possibility that it will is enough to diminish faith in our courts.

Baer advocates for Pennsylvania to make a change and remove itself from the handful of states that elect all judges in partisan elections.  We agree with him and hope that Pennsylvanians will ultimately get to decide for themselves whether to find a better way to pick appellate court judges.

Merit Selection provides pathways to the appellate bench for candidates of diverse backgrounds who are experienced lawyers and jurists.  Qualifications and skills are the key factors in determining who reaches the appellate bench in a Merit Selection system.

Merit Selection removes campaign donations from the judicial selection process, allowing appellate judges to be chosen based on their qualifications and experience. By getting judges out of the fundraising business, Merit Selection promises appellate courts free from the perception of potential bias toward campaign contributors.

If you’d like to add your name or organization to the growing list of supporters of Merit Selection in Pennsylvania, we’d love to hear from you. Please fill out & return the Supporter Form, or contact us at info@pmcaction.org.

Baer is correct. We’re approaching the summer recess with many issues still in a holding pattern. Several of these issues require constitutional amendments, which must be passed before the summer recess in order to have enough time for the constitutionally-mandated publication to occur. This includes both legislative redistricting and Merit Selection of appellate judges.

There’s still time left for real reform. Legislative hearings where different groups could discuss Merit Selection would be an excellent step forward. As the pressure to pass the new budget becomes more urgent, its important that our state legislators know that we want reform to stay on the agenda. Tell them it’s not too late.

Although we’re hoping there will be a stand alone amendment to address Merit Selection for the appellate courts, we’re glad to see that the Times included Merit Selection of appellate judges in its list of necessary reforms.

You can find more coverage on the conference in Philadelphia’s The Bulletin newspaper.

UPDATE: Videos of the conference speakers and panels are now available.

Let’s start with his primary question, why Merit Selection for judges but not for other public officials. First, to be clear, the current legislative proposals would implement Merit Selection only for the three appellate courts. Elections to these courts require judges to run statewide.

Second, judges are different from other public officials. Judges are sworn to act impartially and faithfully uphold and apply the law, regardless of personal preference, political pressure, popular opinion and the desires of campaign contributors.

Other officials, like governors, senators, representatives and mayors are not subject to such limitations. Instead, they represent constituencies, make promises in order to win votes, and are held accountable for whether they live up to those promises. People donate to the campaigns of these officials because they agree with their agendas and expect them to carry out those agendas once in office.

By contrast, judges cannot promise to rule a certain way once they reach the bench. But they still need to raise lots of money to run statewide campaigns. Who contributes to such campaigns? The bulk of the donations come from lawyers, lawfirms and other organizations that frequently appear before the state courts as counsel or parties.

No one should have to worry whether the opposing party or counsel in court contributed to the presiding judge. But in a system that requires judges to raise lots of money to run in statewide partisan elections, people do worry about this. Merit Selection gets judges out of the fundraising business and lets judges be judges, not campaigners and fundraisers.

Next, Mr. McOscar seems not to understand that changing to a Merit Selection system for the appellate courts involves amending the constitution. It’s not something the governor or the legislature can do of their own accord. In fact, the Governor does not even have a role in the amendment process. The legislature must pass the same constitutional amendment in two successive sessions and then the people must vote for it in a referendum. The system can only change if the people of Pennsylvania vote for a change.

And that brings us to his third question, why has it taken so long to bring this reform to Pennsylvania? Because opponents of Merit Selection are afraid to let the voters decide for themselves the best way to pick appellate court judges. That’s why this issue hasn’t gone before the people in 40 years.

Supporters of Merit Selection trust the voters to make this decision. But opponents haven’t given the voters this chance. What are you so afraid of, Mr. McOscar?