Daniel Rubin: Take Pa. courts into modern era

Another spring, another effort to disinfect the way the Keystone State picks its top judges.

"Change in Pennsylvania is a task worthy of the deities," Rep. David Steil, a Republican from Bucks County, observed on Tuesday as he backed the latest bill to select appellate court judges by merit.

There's some question whether God could get elected to the highest court in the state - especially if God were black, were from Philadelphia, or didn't get a good ballot position.

Pennsylvania is one of six states that still allow voters to choose all of their judges in partisan elections. So it can't be coincidence that most Pennsylvanians believe that judgeships are political positions and that judges are influenced by their contributors. Those donors gave nearly $8 million to candidates for the state Supreme Court last fall.

What's stopping Pennsylvania from following the national trend toward appointing judges?

"In Pennsylvania, we have a history of people having the right to vote for a judge," Senate Majority Leader Domenic Pileggi, a Delaware County Republican, told me. "I have yet to hear an argument that convinced me that right should be taken away from citizens."

Try this one: Only once in 158 years of judicial elections have those citizens elected an African American to the state Supreme Court. That is an outrageous number. The record isn't much better on the other appeals courts. When Cheryl Allen was elected to the Superior Court last fall, that doubled the number of minorities on the top three courts.

Out of 31 judges, that made two.

C. Darnell Jones had a few things going against him politically when he campaigned for a spot last year on the top court.

It didn't help enough that Gov. Rendell called him the most qualified candidate, that the state bar association gave him its highest rating, that he was endorsed by every major newspaper in the state, that he taught at Penn law school, or that he had 20 years' experience on the bench, most recently as presiding judge of Common Pleas Court.

He's an African American from Philadelphia.

He said he was shocked when he visited state party leaders after declaring his candidacy last January: "At the first opportunity in a political setting, I was told that the deal was already made and I should not bother. I should drop out and essentially wait."

What he needed to have done was to have spent months making political connections around the state, raising hundreds of thousands of dollars, giving speeches. "It's a networking game," he says. "It's a fund-raising game."

And it's a game of luck, where everyone wants to win a lottery for first on the ballot. He was fourth.

The state Democratic party picked two other candidates. Local party leaders banned him from addressing endorsement caucuses in Allegheny and Montgomery Counties, he says. That hurt. "I only really campaigned in seven counties because I didn't have access."

This sort of experience lessens minorities' trust in the higher courts, says the Rev. Robert P. Shine Sr., a former president of the Black Clergy of Philadelphia. "Many in the community feel hopeless and lost that there will be any justice at the appellate level."

Lynn Marks, who as director of Pennsylvanians for Modern Courts works for merit selection, says the new bill would help bring diversity.

There would still be popular input under the legislation. Six of the 14 seats on the commission that would recommend candidates to the governor would be "public," filled by representatives of unions, businesses, civic groups. The remaining seats would be picked by the governor and legislature. After four years, voters could choose whether the judges should be retained.

The jury's still out on whether merit selection would improve diversity, says Sherilyn Ifill, a law professor at the University of Maryland. "Even when African Americans are selected for a seat on the bench by the governor, it doesn't answer whether those are the African American candidates who are the candidates of choice for their community."

But could it be any worse?