Pa. lawmaker unveils judicial merit selection bills, seeks to move away from elected judiciary

By Jon Campisi | Mar 8, 2012

When two Luzerne County judges were sent to prison last year for a combined total of nearly five decades stemming from their respective roles in a judicial scandal that came to be known as “Kids for Cash,” some observers lost their faith in Pennsylvania jurisprudence.

Many were shocked to hear that supposedly impartial judges were carting minors off to privately run detention centers for kickbacks. Others said that’s precisely the type of thing that could happen when money, politics and the electoral process invade the judiciary.

In Pennsylvania, judges at all levels are chosen through a partisan election process.

The commonwealth is one of 39 states that elect judges in some fashion, according to the Annenberg Public Policy Center of the University of Pennsylvania.

But it’s in the minority in that it’s one of only a handful of states that elect every single judge from minor judiciaries like Philadelphia’s Traffic Court all the way up to the appellate levels, including the Pennsylvania Supreme Court.

In a report titled “Judicial Campaigns: Money, Mudslinging and an Erosion of Public Trust,” the Annenberg Public Policy Center cautions that an elected judiciary has the ability to be, and very often is, influenced by factors such as campaign dollars and quid pro quos.

“Big money and mudslinging are undermining public trust in the judiciary and the ability of judges to act independently and impartially,” the report states.

Still, changes to the system might be difficult in those places where the citizens directly determine who sits on their courts.

“The public isn’t going to give up on the notion that they should be able to elect judges,” Annenberg Public Policy Center Director Kathleen Hall Jamieson said in a statement.

She noted that a new national survey by the center shows that nearly 65 percent of Americans prefer to elect those who sit on the bench.

There are others, however, who want to move toward a different selection process here in the Keystone State, one that has come to be known as merit selection.

And one Pennsylvania lawmaker wants the commonwealth to go the way of two thirds of the states and the District of Columbia who choose their jurists in this manner.

(The two-thirds figure comes courtesy of the American Judicature Society).

State Rep. Bryan Cutler, a Lancaster County Republican, is the sponsor behind H.B. 1815, a bill that would amend the state constitution to allow the governor to appoint judges to the state’s three appellate courts: the Supreme Court, the Superior Court and Commonwealth Court.

Under the proposal, the governor’s actions would be subject to the approval of the state senate.

An accompanying proposal by Cutler, H.B. 1816, would create an Appellate Court Nominating Commission to review the candidates for appellate court vacancies and present their recommendations to the governor for final selection.

Cutler was in Philadelphia last week to participate in a hearing by the House Judiciary Committee, on which he sits, and urge fellow members to support his move toward modernizing the Pennsylvania court system.

“We have an election system sadly dependent on campaign contributions, which has led the people to rightfully question if the political system affects the integrity of the judicial system,” Cutler said in remarks to the committee, which were reproduced in a news release posted to his website.

“I believe the faith of our citizens in the judicial system is vital,” his remarks continued. “We must have judges who are qualified, competent, and scrupulous. The electoral system comes down to who can raise the most money, produce the best ads and campaign the hardest. None of these qualities are relevant to the judicial system. I believe merit selection could help to restore the faith of the people in this important branch of state government.”

Lynn Marks, the executive director of Pennsylvanians for Modern Courts, told the committee her organization favors a system of merit selection in the commonwealth, according to Cutler’s news release.

“People need to believe they get a fair shake in the courts,” Marks was quoted as saying. “No system is void of politics, but Pennsylvanians deserve a system designed to seat the most qualified judges possible.”

Another Pennsylvanians for Modern Courts representative, Shira Goodman, reminded the House committee that Pennsylvania currently has no rules for recusal of judges, so a jurist can hear any case, even those involving campaign donors.

The best answer, she said, is to get judges out of the fundraising business.

Kathleen D. Wilkinson, chancellor-elect of the Philadelphia Bar Association, said in a statement that her organization also supports adopting a system of merit selection for Pennsylvania judges.

“With little relevant information about judicial candidates, voters often make choices for reasons that have nothing to do with qualifications for judicial office,” she said. “In primary elections, ballot position can determine an election. In the general election, voters often choose a candidate based on an identity of ethnicity, residence or the appeal of a television ad.

“The time has come,” her statement continued, “to stop electing appellate court judges, to restore the confidence of the electorate in our judicial system, and to open the process to a wider and more diverse pool of well qualified candidates.”

Rep. Cutler’s bills, H.B. 1815 and 1816, currently await a vote in the House Judiciary Committee.

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