By Michael R. Dimino
Gov. Rendell has proposed replacing Pennsylvania's system of electing appellate judges with the "Missouri Plan." Named for the state that first adopted it, the system is sometimes misleadingly called "merit selection" by its supporters, though there is no evidence that it selects more qualified judges than any other system. It provides for the governor to appoint appellate judges, subject to Senate confirmation, from a list of nominees approved by a commission. The appointed judges would serve a four-year term and then run unopposed for a 10-year term in a retention election.
The proposal attempts to correct perceived defects in judicial elections, including the possibility that voters may choose the best-looking or most recognizable candidates rather than those who best analyze legal issues. A related concern is that elections encourage judges to follow public opinion instead of the law. Further, critics contend, elections create a conflict of interest as judges must raise campaign funding from the lawyers and litigants who appear before them.
All of these are problems, but the governor's proposal does little to address them. Reforms within the election system would better solve these problems, while still allowing the people a direct say in the selection of officials who regularly make important decisions affecting public policy.
All judges - especially appellate judges - make policy, even as they follow the law. The "law" - from constitutions and statutes to judge-made "common" law in areas such as property and tort - leaves plenty of room for judges with different philosophies to reach different results. Accordingly, the choice of judge makes a huge difference. The question is whether we want judges making policy when they are neither chosen by, nor accountable to, the people.
This is not to say elections are perfect. There is no doubt, for example, that many voters do not know the names of judicial candidates, let alone any distinctions between them. Voters are under-informed, however, in part because candidates in Pennsylvania are prevented from explaining how their decisions would differ from those of their opponents. (This prohibition on speech that "appears to commit" a candidate remains on the books despite a 2002 U.S. Supreme Court decision indicating the rule may be unconstitutional.) If our concern with elections is that voters don't have enough information, we should provide them with more information, not take away their vote.
Undeniably, any system in which judges must stand for reelection raises the possibility that voters will make decisions based not on whether judges' decisions are correct, but whether they are popular. But that problem stems from requiring judges to run for reelection, and has nothing to do with the initial method of selection.
Again, the governor's proposal would do nothing to solve this problem. Under his proposal, judges would stand for retention after an initial period of only four years, and would be conscious of the electoral impact of rulings during that period. Public elections followed by long terms of office would be much better at insulating judges from political pressure, and would allow voters to affect public policy by choosing judges initially.
Likewise, the governor's proposal does little, if anything, to address the apparent concern with the money raised and spent in judicial campaigns. Judges who run for reelection must raise money, whether for retention elections or traditional contested elections. If we are concerned about the corrupting potential of campaign fund-raising, we should address that problem directly, rather than by changing the selection system.
Contributions to judges can be limited so that judges will not feel beholden to any individual contributor. Even better, judicial campaigns can be funded by tax dollars so that the need to raise money is almost eliminated.
Either solution is more likely to address the problem than is the governor's proposal, which would accomplish nothing but strip the people of control over an important group of policy-makers.