A Better Way to Pick Judges

In Pennsylvania where I live, it is the day after the primary election. For most of us, the only way we could tell for sure that there was an election were the countless number of candidates’ signs up and down the road for judges — most of whom we have never even heard of let alone know whether they would make good judges.

And for sitting judges who are seeking reelection, besides the lawyers and others who are part of the trials, who has seen these judges at work to make an intelligent decision on whether they are worthy of retaining in their positions?

So if the great majority of us do not know the judges we are being asked to vote for, what determines who gets elected? Usually, it is someone who is well known enough to have name recognition — or through spending enough money can establish that name recognition by advertising. Keep in mind, it is mostly about getting you to remember their names when you walk into the voting booth. Issues don’t normally enter into it. Usually, all they can talk about is how they are in favor of law and order. Many times, you can’t even tell which party they are with since judicial candidates in Pennsylvania often cross-file so they appear on both parties’ primary ballots.

So it can’t be surprising that the turnout for these elections is dismal resulting in judges being selected by a politically active minority. Isn’t there a better way to pick judges?

If nothing else, there is another way to pick judges. And that is through a system called merit selection. It varies from place to place but a proposed system is outlined in this article Merit Selection Explained.

The (proposed) selection process has four steps:

1. screening and evaluation by a citizens’ nominating commission that recommends the most qualified candidates to the governor;

2. nomination by the governor of a candidate from the commission’s list;

3. confirmation by the senate; and

4. retention in a nonpartisan yes-no vote by the public after an initial term of four years on the bench (and every ten years thereafter).

Of course the main objection to a merit selection system is that it goes against the principle that in a free democracy, it is better for voters to pick their public officials instead of having them appointed. But while this may work in principle, it doesn’t always work out that way in practice.

For example, people in dictatorships get to vote for their leaders. But when voters only have one choice, elections don’t mean so much.

What if voters do have a choice of more than one candidate — but the names of the candidates are covered up? That election wouldn’t mean so much either! But when you have an election like what we have for judges where we don’t know who they are, isn’t that just about the same thing?

While picking people who serve the public through the ballot box is worthwhile, clearly there is a limit on how many positions we can actually fill through elections.

For example, in a public school, we do not ask principals and teachers to seek our votes to get their jobs. We vote for a school board who then normally hires the principal and/or the teachers.

Federal judges, including the most powerful Supreme Court judges are appointed by the Executive Branch and then approved by the Legislative Branch of our government. But even this still gives us indirect power in the selection process. For example, in selecting Barack Obama as our president, we can expect more liberal judges as a result. Those who preferred more conservative judges voted for John McCain. Similar arguments can be made for governors’ appointments of state judges.

Of course, any process that relies on political appointments can become political or sometimes, downright corrupt (see: Blagojevich, Rod). But judicial campaigns financed by special interests can be just as bad as described in this Slate article What's the Best Way To Pack a Court?

It's no secret that many chambers of commerce and trade associations and their foes, plaintiffs' attorneys and unions, have become the Itchy and Scratchy (from The Simpsons) of judicial campaigns, willing to do whatever it takes to prevail. Since 2000, these rivals have spent millions to elect judges that they hope will rule their way, smashing funding records in at least 15 states. (As an Ohio AFL-CIO official put it: "We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators.")

The question is not whether merit selection is perfect (it’s not). It’s whether it is an improvement over the system used by a minority of states who still have partisan elections for judges. Here in Pennsylvania, a number of groups, individual politicians, and newspaper editorial boards are supporters of merit selection for judges. The present system we have of electing judges has become a joke. Isn’t it time we all finally give this idea some serious consideration?