PA Must Reform Its Judicial Selection System

This story originally was published by Real Clear Wire

By Christopher Brooks
Real Clear Wire

Complaints about how Pennsylvania selects its appellate judges are nothing new. The January 1964 Citizens Conference reasoned that “the objective of any method of [judicial] selection should be to obtain judges free of political bias and collateral influences.” The Conference report concluded that “Pennsylvania has been fortunate in securing many excellent judges,” though despite, not because of, its “partisan political election” system.

It’s not because of the millions spent on appellate judicial races, either. The 2023 Supreme Court campaign cost approximately $22 million. To put that into perspective, the governor approved $19.4 million for all Pennsylvania Supreme Court justice and staff salaries, making the campaign for this one seat more costly than paying all the Commonwealth’s highest jurists and their dozens of staff for a year. If appellate judicial elections are both partisan and as costly as this, we may prudently ask how we can safeguard the appearance of fairness and equitability.

Pennsylvania legislators and citizens have made periodic attempts over recent decades to change the system of judicial elections to one involving some form of nonpartisan merit-selection process – to no avail. As John Baer has written, “Judicial races are important, serious stuff,” but, at this point, we might as well “[a]uction state court seats” and “funnel the cash to public schools.”

Pennsylvanians can do better. Assuming most Commonwealth residents want fairness before the law, why are we subjecting judges to electoral politics when jurists are supposed to be nonpartisan?

During the most recent judicial election cycle, Republicans and Democrats ran largely on three hot-button issues that will likely find their way to our nation’s oldest state supreme court: abortion, election law, and mail-in voting. (School vouchers might show up as a fourth.) The first canon in the Pennsylvania judicial code of ethics makes taking a position on these or any other issues that may wind up before the court ostensibly impossible. It reads: “Judges should uphold the integrity and independence of the judiciary.” One must ask just how independent these highly qualified jurists may reasonably be expected to remain when they receive funds from partisan organizations that take a clear stand on one or more of these three contentious issues.

All this brings us back to the need to solve the problem of overt partisanship through judicial selection commissions, also known as merit selection. The composition of such an Appellate Judicial Commission has generally been envisioned as consisting of:

• Three attorneys elected by the state bar association
• Three members selected by the legislature
• Three citizens selected by the governor

An equal number of members would represent each of the geographic appellate districts. Pennsylvania’s Supreme Court chief justice would be chairperson. The Appellate Judicial Commission would select judicial candidates from an applicant pool.

This system is a bit fairer, but it is not without problems – especially the access that governors enjoy in choosing from among finalists recommended by the commission and in selecting about a third of the commission members themselves.

What about a modified merit system, one where voters elect the commissioners? Such a plan provides a method that doesn’t bog judicial candidates down in the quagmire of partisan politics and mitigates the appearance of monied imbalance and impropriety. There could be 17 commissioners – one per U.S. congressional district.

With criteria set by the legislature, commissioners would run for their regional seat in nonpartisan elections. They could serve five-year, non-consecutive terms. Members could elect their leaders from among themselves. Should the electoral map leave Pennsylvania with an odd number of congressional districts, the Pennsylvania Supreme Court chief justice could lead the commission.

A consensus on these and other details is necessary. The selection of our higher court judges requires more seriousness and attention.