Next month, Pennsylvanians will head to the polls and find themselves asked to weigh in on a slate of judges, many of whom most voters will never have heard of. There’s a wide variation between states when it comes to putting judges on the bench, but Pennsylvania judges are mostly selected in partisan elections.
Individual judges have the opportunity and the responsibility to wield an awesome power with his or her decisions — guilt or innocence, prison or release, and in some cases, life or death. As Americans, we are taught from a young age that the ideal government is elected democratically by the people. However, in recent years, some experts have wondered if the election of judges compromises their ability to remain impartial in cases.
The Inquirer tapped two Philadelphians to debate: Should Pennsylvania stop electing judges?
No: Electing judges gives power to the people
In drafting the U.S. Constitution, our Founders established a revolutionary experiment in world democracy — one that included the appointment of legislators to our federal “upper house” by the state legislatures they were chosen to represent, rather than the people directly.
After nearly 150 years of U.S. senators being selected by state legislatures, and with reform in mind, political pioneers worked to pass and ratify the 17th Amendment, providing direct election of senators from voting members of the public, which at its time of passage in 1913 only included men. That was, until the 19th Amendment granting women’s suffrage was ratified several years later. Together with other major reforms, this era of rapid change in our political system became known as the Progressive Era.
Who would want to roll it back? Most today wouldn’t think of switching back to state legislatures appointing senators. So why provide less accountability and oversight from voters with regard to our state and local judiciary?
“The question of appointments versus elections is really a question about who gets to decide who makes consequential decisions in our country.”
The problems with our judicial system (and our political system overall) are manifold, but would not be solved by changing our system to favor judicial appointments instead of elections — because those problems occur regardless of whether judges have a lifetime appointment or are directly elected. They are: a fundamental confusion of the role of a judge (to analyze the law, not to write it), factionalism and special interests that push judges to pursue policy ends rather than legal means, and an American public that has largely lost its sense of civics education and checks and balances at the local and federal levels.
Proponents for eliminating judicial elections often cite the insidious nature of money in politics, a problem of special interest factionalism famously recognized by James Madison as essential to politics in Federalist 10. Who would decide who sits on the bench, if not the people, in the eyes of these “reformers”? State or local elected officials who owe their own favors and serve their own, or unelected supreme bureaucrats, who would presumably be picked by some elected official at some level. Thus, switching judicial elections to appointments would only dislocate, but not combat, the money and politics in our system, and where these come into play. And it would be a shift away from voters and toward entrenched power.
Meanwhile, favorable policy ends are not guaranteed by a system of appointments — just see the howls from progressives at the current makeup of the U.S. Supreme Court, dominated by conservatives thanks to auspicious federal election results and one audacious electoral risk by Mitch McConnell to wait out the 2016 clock on then-President Obama’s nominee to the court, Merrick Garland.
The question of appointments vs elections is really a question about who gets to decide who makes consequential decisions in our country. While I can’t guarantee that judicial outcomes would differ substantially with judges appointed by state or local executives, with input from legislatures, entrenching more power among elites is probably not what our system needs more of.
So, in picking judges, should we trust the “experts” and the administrative state, or the people? I’ll go with the people. Without a compelling reason to change course, there is no need to do so.
Albert Eisenberg is a Philadelphia-based political consultant, and is a founder of Broad + Liberty. He has consulted extensively on diversity and LGBT issues from the Right. @albydelphia
Yes: Elections politicize judges who should be impartial
It is time to reform the way judges are selected in Pennsylvania. Why? Our judges campaign to be elected, and in doing so, they need to raise large sums of money from lawyers, citizens, businesses and special interest groups in Pennsylvania and elsewhere who could or actually do appear before these judges. There are alternatives to elections of judges that take campaigning, money, and politics out of the process — commonly referred to as merit selection. However, the term merit selection is misleading. Instead, we should be using the term judicial selection or judicial appointment in order to avoid any implication that elected judges don’t have merit and prevent any further erosion of the public’s confidence in the judiciary branch of government.
Many of us have heard about the U.S. Supreme Court case Caperton v. Massey Coal, where a coal company was found liable by a West Virginia state court jury for $50 million in damages because of fraudulent misrepresentation and concealment. Knowing this case would be appealed to a higher court, the chairman and CEO of Massey gave $3 million to a candidate for the appellate court rather than support an incumbent. This contribution totaled more than all other contributions to this candidate combined and this candidate won by fewer than 50,000 votes. This candidate refused to recuse himself when the case came before him on appeal and joined in a 3-2 vote to overturn the $50 million verdict. The U.S. Supreme Court held this judge should have recused himself because of conflict.
“Assuring fair and impartial justice without the influence of money or conflicts is crucial to gaining the public’s confidence in the independence of our judiciary.”
This is one extreme example of the problems with judges campaigning and raising moneys. Unfortunately, we in Pennsylvania have witnessed far too many situations where judicial decisions have been sold or influenced by money. Remember the ticket-fixing scheme which resulted in criminal convictions of judges and the elimination of Philadelphia Traffic Court? As we also know, campaigns can be expensive and time consuming and many capable, qualified and diverse candidates don’t want to mortgage their future and their family’s future for an unsuccessful election.
Turnout for judicial elections is traditionally extremely low. For example, in November 2019, a judicial election year, 2.3 million Pennsylvanians turned out to vote, in sharp contrast to almost 7 million persons voting in November 2020. This translates to judicial elections being decided by a relatively small number of constituents. Many voters believe judges should represent them and their interests. However, judges should only be concerned with interpreting and applying the rule of law and not the political whim of the day. Judges represent the law. Additionally, if you ask a Pennsylvania voter to name a judge for whom they voted, most cannot. Voters make their decisions based on party affiliation, ballot position, and sometimes simply a person’s name.
Judicial appointment or selection can have different methods of implementation — one being a two-step process in which judicial appointments are suggested by a nominating commission whose composition can be chosen from the legislature, bar associations, judges, law schools and citizens and then a gubernatorial appointment from the list of commission-forwarded nominees and — another being simply a gubernatorial appointment. What this process can result in is the application for judgeships by qualified, capable, experienced and diverse individuals.
State courts impact our everyday lives from business disputes to accidents to discrimination claims. Assuring fair and impartial justice without the influence of money or conflicts is crucial to gaining the public’s confidence in the independence of our judiciary.
Deborah Gross is president and CEO of Pennsylvanians for Modern Courts. www.pmconline.org