What If You Can’t Vote For A Judge?

Or Maybe A Group Of 14 Can Do Better Than You!

by Joe Shaheeli

Should judicial candidates be elected or selected?

That is the question that never goes away. It’s now back again on the front burner with the successful effort of Pennsylvanians for Modern Courts to get bills introduced into both houses of the General Assembly to take away the election process from judges seeking statewide offices.

For defenders of the voters’ right to choose judges at any level, it smacks of being an end run by the proponents for merit selection.

Fueling the drive for advocates of merit selection have been several newspaper articles in local dailies promoting the “need” to replace the right of the people to vote for judges with selection of judges by a blue-chip panel of 14.

Presently, Pennsylvanians are guaranteed, by the State Constitution, the right to elect our judges. Through the electoral process, Pennsylvanians have chosen judges and justices who have served and continue to serve its citizens very well.

However, the escalating costs of running statewide campaigns is seen as a detriment to the ability of minorities and those unable to raise the necessary funds to be in contention.

Lynn Marks, who founded and heads PMC, has been the key figure in the effort to create a change in the way judges are elected. Under Marks’ leadership since 1990, PMC has spearheaded the effort for Pennsylvania to appoint, rather than elect, State court judges. She has testified at numerous public hearings and is a resource for policy makers, academics and representatives of the media. She was a principal advisor to former Gov. Tom Ridge in his effort to achieve merit selection of judges and co-chaired the transition team’s Judicial Issues Task Force of the current Governor, Edward G. Rendell.

She admits at least 20% of her funding does come from large law firms and attorneys who could eventually be considered prime players in helping set up the selection committees for the various judicial positions.

But she says, “In addition to the area of judicial selection, we work to improve judicial discipline, jury service, court funding, and increasing racial, ethnic and gender fairness.”

Checking out the PMC argument there is not enough diversity in the statewide courts, the lineup on the Commonwealth’s three statewide courts casts doubt on that, at least when.

The Superior Court is made up of 15 commissioned jurists. Of these, the President Judge is a female, Kate Ford Elliot. Of the remaining 14 judges, seven are female. These include Judges Joan Orie Melvin, Maureen Lally-Green, Mary Jane Bowes, Susan Gantman, Christine Donohue, Jaqueline Shogan and Cheryl Allen.

On the Commonwealth Court, the President Judge is Bonnie Leadbetter, and of the remaining seven judges, four are female. They are Doris Ribner-Smith, Rochelle Friedman, Renee Cohn Jubelirer and Mary Hannah Leavitt. The overall majorities on these two courts are women and of those, two are African American.

The State Supreme Court includes Chief Justice Ronald D. Castille, Thomas Saylor, J. Michael Eakin, Max Baer, Debra Todd, and Seamus P. McCaffery. That’s just one woman out of seven, but there would have been two had Sandra Newman not resigned.

So what is the real reason behind the merit selection movement?

Marks believes if her group is successful it would take fundraising out of judicial selection, because lawyers working the appellate circuit would not have to worry about the “outside influences” of the heavy election-year backers of the judges before whom they were pleading their cases.

A high court official, who has run the election gauntlet through many successful campaigns, says, “All three bran­ches of government, under our Constitution, are to be separate but equal. The citizens of Pennsylvania elect the executive and legislative branches of government. They are not selected, nor should those in the judiciary be.”

That official went on to contend, “If the need to raise big bucks is key to merit selection, then groups such as Marks’ would do well to promote State funding of statewide judicial races as is done in other states.”

That official also asked: “Could it be the lawyers that fund this lobbying group do not want to lower themselves by campaigning across the state and having to shake hands with the citizens?”

There is no denying it will be harder for an individual without elite support to get consideration from a merit selection than it is by appealing to voters. A look at the “merit-selected” Federal bench shows all are politically connected jurists.

Professor Marina Angel of Temple University School of Law wrote, “Merit selection’s main purpose is to take away our constitutionally-guaranteed right to vote for judges and give that right to a 14-member ‘nominating committee’, with a majority appointed by the Governor and the Majority and Minority Leaders of the State Senate and House.

“The other six are to be appointed by special-interest groups: a union, a non-lawyer professional association, a business organization, a public-safety organization, a civic group and a law-school dean.

She contends the nominating committee will operate in secrecy, subject neither to Pennsylvania’s sunshine laws nor to voters, who only learn who the five finalists are when the list is submitted to the Governor.

She notes, “As for the merit part, individuals must get eight votes in the committee. That adds up to the four appointed by the Governor and the four by the legislative Majority and Minority Leaders.

“Those nominated must be licensed lawyers who have practiced law, served as a judge or engaged in a law-related occupation for 10 years. They must demonstrate ‘integrity, judicial temperament, professional competence and experience and commitment to the community.’ None of those terms are defined.

“Is the Governor’s good buddy – who’s contributed time and money to him, and is head of a law firm that represents large corporations and who’s active in the Chamber of Commerce and the state bar – meritorious?

“Is the solo practitioner – who does a great job representing poor people in a rural area for minimal fees but doesn’t make enough money to contribute to politicians or join bar associations – less meritorious?”

Angel notes, “The demographics of the United States are finally in favor of men of color and women of all colors. In the state’s fall elections, women won three of the four open appellate-court seats. On the national scene, the Democratic candidate for President will be either a man of color or a woman.

“As for trusting the chief executive, in this case Gov. Rendell, to choose from a ‘merit’ slate, Rendell just picked four older white males for interim appellate appointments.”