Would be similar to federal system, rather than using elections
By Stacy Brown | PA Independent
HARRISBURG — Name recognition — not their qualifications — will be a key factor for candidates seeking judge seats on the Superior and Commonwealth courts, say experts and others seeking to reform the selection of judges.
That’s because the judicial canon of ethics prevents candidates from discussing their stand on issues that may affect the public. With that in mind, state Rep. Bryan Cutler, R-Lancaster, is co-sponsoring two bills that seek to change the state constitution by switching from elections to a merit selection process.
House Bills 1815 and 1816 were proposed earlier this year and remain in the House Judiciary Committee, which has scheduled a public hearing Nov. 17 at the University of Pennsylvania in Philadelphia. These bills are companions to Senate Bills 842 and 843, which were introduced in March to the state Senate Judiciary Committee by state Sen. Jane Earll, R-Erie.
The merit process combines elements of elective and appointive systems. It would require an independent Appellate Court Nominating Commission to evaluate qualified candidates for Superior, Commonwealth and Appellate courts and nominate them to the governor, who in turn would present his nominations from among those recommended to the state Senate for approval, Cutler said.
"One of the frustrations I have always had is those who go out and engage in political campaigns but obviously can't say what they would do," Cutler said. "I want a process that depends on credentials and qualifications, not who can get out the most voters."
Thomas Baldino, a political science professor at Wilkes University in Wilkes-Barre, said going to a merit selection process would “to get people who are better qualified" for the bench.
"Elections aren't always designed to find the most qualified candidate, but many have gone on to become good judges," said Shira Goodman, deputy director of Pennsylvanians for Modern Courts, a statewide nonpartisan nonprofit that seeks to reform the judicial selection process.
"We have been in favor of qualified candidates, those who have a reputation for fairness and honesty and those who have a professional background that brings diversity to the benches, which reflect what Pennsylvania looks like," Goodman said. "That's what a merit selection system does.”
Judicial elections are held in odd-numbered years in Pennsylvania. Under the current system, the requirements to run for judicial office are U.S. citizenship, being at least at least 21 years old, residency in the state for at least one year and membership in the bar of the Pennsylvania Supreme Court.
Cutler's proposal would provide initial terms of four years followed by a retention election for the full 10-year term. His reasoning is that, although retention would revert back to a system of electing a judge, voters would have a record on which to base their decision after just four years. The system now in place allows for a retention vote to take place after 10 years.
The Appellate Court Nominating Commission would consist of 15 members: four appointed by the governor; four by the General Assembly and seven public members, Cutler said. Members would serve for four years, but could not serve consecutive terms under the proposal.
The governor would be prohibited from appointing more than two members of any political party, and all appointees must be non-lawyers from different counties. Relatives or members of the governor's staff would be disqualified, according to the bill.
Each of the legislative appointees must be lawyers but not members of the General Assembly or their staff or relatives, Cutler said.
One public member would be a dean of a law school in the state and the dean must be chosen by the deans of all Commonwealth law schools.
The remaining public members will be selected from nominations made by civic organizations, unions, business organizations, bar associations, non-lawyer professional associations and public safety organizations, according to Cutler’s proposal.
The Secretary of the Commonwealth will draw names of Commission members by lot from the nominations made by the five organizations with the highest numbers of Pennsylvania residents.
Those individuals who could qualify to serve on the appellate courts must:
- Be licensed members of the Pennsylvania bar in good standing; and
- Have spent at least 10 years of experience practicing law, serving as a judge or engaged in some other law-related occupation.
Cutler's measures would require amending the state constitution. Both bills must pass the General Assembly and be published in at least two newspapers in each county three months before the next election.
Finally, voters must approve of the measure in a statewide referendum.
The proposed system is preferable to the one now in place for several reasons, Cutler said.
"When a judge comes up for retention vote, everyone will have a record to go on. You won't have someone without experience, and you won't have a situation where it comes down to money or popularity," he said.
"Pennsylvania has been trying to get a merit selection system for (decades)," said Tim Potts, co-founder of Carlisle-based Democracy Rising, a nonpartisan nonprofit that advocates for government transparency.
"It'll take getting back to a government that gives a damn about the people for things to change. The citizens don't turnout for judicial elections, because they can't get any information to make informed decisions," Potts said.
