Today’s topic is how we put judges on our state’s highest courts.
Not necessarily an enticing topic, I know. But important. Maybe timely. And politically intriguing.
The Republican-run legislature seems serious about making a change that, shocker, might just prove advantageous to Republicans.
There’s a fast-moving House bill to elect statewide judges by region.
Actually, lots of regions. As in one for each of our 31 state judicial seats: 15 on Superior Court, nine on Commonwealth Court, seven on Supreme Court.
This would replace our current practice of electing state judges on a statewide ballot. It would slice the state into multiple judicial districts. The districts would be drawn by the legislature. What could possibly go wrong?
And why are we looking at this?
Because statewide judicial elections require expensive campaigns (2015 Supreme Court races here topped $16 million, the most in U.S. history), creating an impression justice is for sale. Because such campaigns favor urban-area candidates (read, Democrats). Because they create unrepresentative courts. And because voters rarely have a clue about judicial contenders.
The bill in question (HB 196) passed the House Judiciary Committee by a 14-11 vote, without any Democratic support (hint, hint), and is positioned for a floor vote, which could come at any time.
Its sponsor, Rep. Russ Diamond (R., Lebanon), tells me, “I think we probably won’t have a problem getting the votes.” And, “I think the [GOP-run] Senate will move this bill.”
When I suggest a bunch of voting districts spread across the state would favor Republicans, he says: “I don’t know if that’s the case or not.”
So, all aboard the reform train?
First, remember, Republican leaders were, and likely remain, apoplectic about the Democratic-controlled state Supreme Court, which in 2018 ruled legislatively drawn congressional districts unconstitutional and replaced them with new districts, which helped add more Democrats to the U.S. House.
Did anyone think that would go unanswered?
Charles Geyh, an Indiana University Law prof and former counsel to the U.S. House Judiciary Committee, is a national expert on judicial selection.
“Other states have gone to regional elections,” he says, “but the notion that judges are representatives is a fairly new development. I always ask why. And usually it’s part of a movement to form a more politically responsive judiciary, ... part of the new politics of judicial elections.”
Diamond denies such intent. Says his motivation is “diversity of judicial opinion” on state courts. And keeping choices in the hands of voters rather than in an oft-pushed merit-selection process with judges picked by “politicians or their appointees.”
Speaking of diversity, Diamond notes our 31 state judicial seats include one person of color (Superior Court Judge and former Philly Common Pleas Judge Carolyn Nichols). He argues state courts are urban-heavy, and says regional elections create better representation.
He offers data showing 54.5 percent of all state court seats are held by jurists from Philadelphia and Allegheny Counties, noting those counties represent 21.8 percent of the state’s population.
Others question the idea of a “representative” judiciary.
Michael Dimino, a Widener Law prof, expert in constitutional and election law, has written widely on judicial selection.
“Dividing a court into election districts sends a message that the judges are representatives of those districts,” he says. “It implicitly says judges elected in such a manner are supposed to serve a constituency identified by geography. … That’s not what judges are supposed to do.”
Diamond’s effort, like merit-selection efforts, requires changing the state constitution. That means passage in two successive legislative sessions and voter approval of a statewide ballot question.
So, whatever change might be coming isn’t coming soon. Still, if Republicans continue holding legislative majorities in Harrisburg, change is a pretty good bet.
What’s unclear is whether that is some sort of merit selection or — let’s say, in a kind way — Diamond’s crazy-quilt solution.
Some might recall Diamond first earned attention as a reformer. He founded PaCleanSweep, a group advocating ouster of every incumbent lawmaker after the legislature infamously voted itself middle-of-the-night pay raises in 2005.
Calling for every lawmaker to go seemed more vengeful than practical. After all, 102 of 248 voting members voted against the raise.