Ages ago I critiqued a proposal (it’s a bit down in that post) for reforming the Pennsylvania judicial selection system. It called for a bipartisan commission to select judges; I suggested that this would simply transfer the partisan facet of the election to the effort to get on the bipartisan commission – and then nothing would get done, as the most unreasonable partisans of both sides would not agree.
Now I see four former governors of Pennsylvania have endorsed the idea, using the prevalent euphemism merit selection for a bipartisan selection body. Philly.com has their proposal:
Merit selection is not a panacea. We are hardly naïve about today’s political realities. Nonetheless, having in place a system by which any qualified candidate can apply for an open seat on the appellate bench and be considered by a bipartisan, diverse group of citizens from across the commonwealth — a group tasked with evaluating the strength of that candidate’s professional and personal qualifications to serve — is a far better system than one in which random ballot position, fund-raising, and campaigning are determining factors.
It seems like there will be improvement in terms of the uproar of the elections being reduced – the vicious fighting for positions on the commission will occur during its formation, and, depending on that selection process, may or may not involve vast sums of money, petty bickering, and all the paraphernalia used by partisans of both sides.
But the judges won’t have elections any longer, will they?
They’ll be faced with the temptation of pandering to the commission, instead. No offense to the judiciary, as I’m sure many will simply go about their jobs and then hope their job performance is sufficient to retain their jobs every few years.
But that’s hardly a secure job position. It doesn’t necessarily induce top performance.
And then for those judges – or candidates – who are deficient, the temptations will be strong. Bribes may be rare, but favoritism in rulings? That I could see.
Look, selecting judges is not an easy process. In an inherently political system, judges need to be neutral politically, with a bias to interpreting the law for each case. And then know what to do when the law doesn’t appear to directly address a situation. The point of the selection process should be to remove negative pressures (political as well as corruptive) from their jobs.
However, the former governors appear to be distracted by a need to involve the citizenry in the process. Here’s their reply to critiques:
And yes, there are those who say that substituting merit selection of these judges and justices for elections is denying voters’ right to elect all of the judiciary. To them we say, Pennsylvania voters will still get three bites at the electoral apple. First, they would continue to elect their local magisterial district judges and judges on the courts of common pleas. These candidates are generally better known to the voters than candidates for statewide judicial positions.
Second, Pennsylvanians would decide for themselves whether they prefer elections or merit selection. The adoption of merit selection for statewide positions would require amending the state constitution, beginning with passage of a bill in two consecutive sessions of the Legislature — itself no small feat — and then go to the voters for final approval.
Finally, judges and justices who are nominated and approved for the appellate courts would have to face the voters in nonpartisan, retention elections after serving on the bench for four years. At that time, voters would have a body of information about how these individuals perform on the bench to use when deciding whether or not to retain them.
And how many non-aligned voters pay any attention at all to the body of work of appellate judges?
I wish the governors had met the populist outcry against appointed judges head-on, instead. This is an opportunity to put forth the reasoning of the Founding Fathers on the judiciary, that it should be independent to the greatest extent possible from the winds of professional politicians, using appointments with such lengths as to outlast the appointer, and to insulate them from popular, but often wrong, opinion. Certainly, they should be removable, but not easily, as judges are human and can be corrupted or even just be wrong, wrong, wrong.
But I fear this bipartisan commission approach mistakes partisanship for wisdom.
