Creating an Equitable Appellate Judicial Commission
Up to now, states have utilized three ways of selecting judges: appointment, election, and merit selection via a judicial nominating commission (JNC). Most Americans are familiar with the appointment system, which the president and many governors use. Residents of Pennsylvania and some other states elect judges, while several other states have JNCs. But no state elects its JNCs. That needs to change.
The idea of electing judges took off in the 1830s. As Sandra Newman and Daniel Isaacs point out, “The Jacksonian populist idea of an elected judiciary, based on the concept that a judge should be accountable to the public, strongly influenced the Pennsylvania Constitutional Convention of 1838.” Since 1850, Pennsylvania voters have directly elected their state judges. Such elections may be the best way to choose lower-court judges, but it’s not clear that the same rationale applies for seats on the appellate courts.
Enter JNCs. Here, the issue is how commissioners get chosen. In their 2014 report, “Choosing Judges,” Malia Reddick and Rebecca Love Kourlis keenly observe: “The selection of commission members is arguably the most important factor in determining the commission’s capacity to inspire public trust and confidence in its work.” Indeed, American voters should have some say in who acts on their behalf in all three branches of government. Yet equally valid are the more skeptical words of Widener Commonwealth Law’s Michael Dimino: “The public is too ignorant of the legal system, the candidates, and the law to make wise choices; consequently, judges are elected often because of their famous names, ethnicities, position on the ballot, party affiliation, and the like, rather than through an assessment of merit. Judicial candidates prostrate themselves before the majority, dependent on their votes.”
Why, then, should our judicial-selection process be left to an electorate poorly acquainted with the third branch of government?
And yet, Dimino goes on to argue that electing judges is better than all the other ways tried elsewhere, such as judicial commissions appointed by governors, legislators, or the state bar association. His argument may have some merit — but consider that in the most recent election, Democratic and Republican political machines spent about $20 million in advertising for just one state Supreme Court seat. This left judicial candidates in a position where they were compelled to campaign in a 67-county, rubber-chicken dinner dance across Pennsylvania, just as their legislative brothers and sisters must do.
Why can’t Pennsylvania become the first state to directly elect a commission that aids in selecting appellate judges? Why can’t Pennsylvania be the first state to try to foster both accountability to the electorate and meritorious selection by informed residents of the Commonwealth?
As I discussed in a recent article, JNCs are typically made up of appointees by the state bar association, legislature, and governor. An application process is established, and the commission whittles down the names to a final three or five candidates. Then, the governor selects from the list the commission provides. The governor’s office thus holds strong influence over the process.
No plan eliminates all bias. I suggest, however, that rather than have governors choose judicial commissioners for appellate courts — the Commonwealth, Superior, and Supreme Courts — voters elect them directly. Just as the electorate has a voice through its elected representatives in Congress, so, too, should it have a say through directly elected judicial commissioners.
For legislators to consider, here is an outline of what an elected appellate judicial commission might look like:
Number of commissioners: seventeen, one per U.S. congressional district
Chairperson: Pennsylvania Supreme Court Chief Justice, who would preside over meetings but would vote only when tie-breaking is necessary
Remuneration: None — the state reimburses commissioners for travel costs, which would not be more than twice annually
Qualifications: bachelorette degree, three years Pennsylvania residency, no felony record
Terms of office: commissioners serve four-year terms with a limit of eight consecutive years of service; they may be reelected in subsequent years
Training: the Pennsylvania Bar Association already provides training to magistrate judges without a law degree, and the Unified Judicial System of Pennsylvania and state bar association could develop appropriate training for commissioners.
A final question to consider: Should the commissioners be elected on a partisan or nonpartisan basis? Let’s hope that Pennsylvania’s legislature can do the right thing and decide this matter in a nonpartisan way.
