How to Navigate Treacherous Waters of Judicial Selection

First published Feb. 25, 2007 in The Dailey Item

Pennsylvanians deserve merit selection. At his swearing-in ceremony on Jan. 16, Gov. Ed Rendell pledged to push for merit selection of appellate court judges during his second term.

This initiative should be supported by all citizens who care about the effective administration of justice and should be expanded to include trial court judges.

In our justice system, impartiality is required of judges—not only actual impartiality, but also the appearance of impartiality. A judge is disqualified from participating in any matter in which his or her personal beliefs are so strong that they cannot be put aside so that the case is resolved according to applicable law.

So, how do we find the most qualified people to fill the judicial role? In Pennsylvania judges are chosen in partisan elections. Once elected, incumbents may choose to seek re-election in a contested election or face the voters in a retention election. It may be that in rural areas with a small population the electorate is able to distinguish, based on personal experience and word of mouth, between the respective abilities of the judicial candidates to be fair and impartial. They may have a good understanding of a sitting judge's temperament and objectivity.

But in counties with any significant population and numerous judicial offices to fill, with multiple candidates often running for the same office, even the best-intentioned voters are at a loss to evaluate meaningfully how to cast their ballots. Without the ability to make an informed choice, the voter either chooses not to vote, votes along party lines, or casts a vote based on a candidate's race, gender, ethnic origin, religion or some other immaterial factor. By doing so, the voter actually may be selecting a candidate who harbors ideological beliefs contrary to his or her own.

The elective system of selecting judges is flawed. It allows unqualified individuals to fill judicial positions and politicizes the process of filling judicial office. This is not to say all elected judges are unqualified. To the contrary, many elected judges would be chosen using any selection method.

However, we can do better. We can have what is universally known as "merit selection." States using merit selection employ a nonpartisan commission to identify, recruit, investigate and evaluate applicants for open judicial positions. From the very best candidates the commission is able to locate, it submits a short list of the most qualified (generally three) to an appointing authority, which is often the governor. The appointing authority is obligated to pick a person from that list to fill the vacancy.

After serving an initial term (generally of six years), the appointee either comes before the commission or the voters in an uncontested retention election to determine whether the judge should be granted another term in office. At that time, a track record from the judge's first term in office is made available for review. Therefore, the voter can make an informed decision regarding retention.

This process has many benefits. Because the applicants who make it to the short list are judged by a nonpartisan commission, they generally are well qualified, enjoy good judicial temperament and are moderate in their views. A strong ideologue is not a candidate for bipartisan support. Those seeking judicial office need not run a campaign, and therefore do not need to make, or appear to make, any promises that would undermine public trust and confidence in their judicial decisions. Because there are no financial requirements, such as meeting the expense of running a campaign, qualified lawyers who would not be interested in running for elective office might well throw their names in the hat, creating a richer pool of candidates from which to choose.

In short, merit selection would give Pennsylvanians the ability to navigate effectively the treacherous waters of judicial selection, and make informed decisions that would result in an outstanding judiciary.

Allan Sobel is director of the Arlin M. Adams Center for Law and Society at Susquehanna University.