Howard J. Bashman's appellate columns, etc.

Pennsylvania Should Keep, But Reform, Its System Of Electing Appellate Judges

By Howard J. Bashman
Monday, September 10, 2001
On November 6, 2001, Pennsylvania voters will elect a new Justice of the Supreme Court of Pennsylvania, three new Judges of the Superior Court of Pennsylvania, and three new Judges of the Commonwealth Court of Pennsylvania. If past years are any indication, not even one-quarter of the Commonwealth's registered voters will cast ballots in this November's statewide judicial elections.

Under Pennsylvania's Constitution, all judges are elected. Common Pleas judges are elected in the county or counties in which they serve, and appellate judges are elected in statewide contests. The winners serve a ten-year term, after which they may stand for retention elections that allow the voters to decide every ten years whether the judges will serve another ten-year term.

The concept of electing judges is easy to criticize. Judges are not representatives of a constituency; instead, they apply the law to the facts in concrete controversies between adverse parties. Judges are prohibited from making campaign promises indicating how they would rule on issues that may come before the courts. And, the idea of judicial office seekers raising money from lawyers, actual and potential litigants, and various interest groups can easily give rise to a concern that justice is for sale.

For these and other reasons, I prefer the method through which Article III federal judges are selected. The President nominates judicial candidates, often at the recommendation of federal or state elected officials from the jurisdiction over which the judge will preside, and the U.S. Senate must vote to confirm the judicial nominee. Thereafter, the Article III federal judge has life tenure (subject to impeachment by Congress) and receives a salary that Congress is prohibited from diminishing. The combination of life tenure and a salary that cannot be reduced provides federal judges with the independence necessary to decide cases as the law dictates.

Although, as an original matter, I prefer the federal method for selecting judges, and although Pennsylvania's method of electing judges is subject to much legitimate criticism, I do not advocate abandoning the election of appellate judges in Pennsylvania. First, Pennsylvania's current system for electing appellate judges has produced a high-quality appellate judiciary of which Pennsylvania citizens can be proud. Second, the principal alternate system under consideration, advocated by the organization Pennsylvanians for Modern Courts ("PMC"), preserves some of the most objectionable features of the current system. For these reasons, Pennsylvania should keep its current system for electing appellate judges while adopting several beneficial, but rather minor, reforms specified herein.

Are Appointed Judges Better than Elected Judges? Nearly all of the individuals that the citizens of Pennsylvania have elected as judges have performed the judicial function well, and many of these judges have served with distinction. Is this just a fortunate coincidence? I think not. It is in the interest of the two major political parties to back highly qualified judicial candidates, and bar associations and the many press outlets in Pennsylvania do what they can to advise the public whether judicial candidates possess the necessary qualifications to be competent judges.

It is true that, on extremely rare occasions, Pennsylvania state court judges have misbehaved in office, or have committed crimes while serving as judges, requiring that these judges be removed from office. Of course, on extremely rare occasions, federal judges have likewise been removed from the bench for misbehavior. An appointive system does not guarantee that the judges selected will be beyond reproach.

Although an appointive system is often labeled "merit selection," it is questionable whether an appointive system produces better judges than an elective system. The appointive system of judicial selection that Pennsylvanians are most familiar with is the system for selecting federal judges. During my years in private practice, I have heard some lawyers opine that federal judges are of a higher quality than state court judges. While a federal judgeship may be more prestigious than a state judgeship, because fewer federal judgeships exist and because federal judges enjoy life tenure, it is demonstrably wrong to suggest that federal judges are somehow better than Pennsylvania state court judges.

Many current and former judges serving on the U.S. Court of Appeals for the Third Circuit and the U.S. District Court for the Eastern District of Pennsylvania began their careers as jurists in the Pennsylvania state court system. Did these judges somehow become more competent and capable simply because they accepted nominations from a President to be federal judges and were confirmed by the U.S. Senate? Of course not. These judges were already quite competent and capable when they were elected as state court judges.

True, some potential distinguished jurists would so loathe the prospect of having to campaign for office, and having to raise money to do so, that they never would seek an elective judicial post. But the appointive system of selecting judges likewise fails to guarantee that judicial vacancies will be filled by the best qualified candidates. Nominations to fill vacancies on the federal appellate and district courts are often determined by U.S. Senators from the jurisdiction in question, and these Senators consider numerous factors other than just the quality of the potential nominee. Some federal and state judges serve with great distinction and others do not. Neither system has a monopoly on judicial excellence. In sum, an appointive system does not guarantee a higher quality judge than an elective system.

The best way to ensure that highly qualified attorneys are willing to serve as judges is for the state and federal legislatures to enact significant judicial pay raises. The salaries currently paid to federal and Pennsylvania state court judges are shockingly low. Those salaries should promptly be raised to approach what highly qualified lawyers are earning in the private sector. The specter of high quality state and federal judges, who provide dedicated public service and who often work as hard as, or harder than, lawyers in private practice, being unable to support themselves and their families on the wages provided is most disturbing.

Pennsylvania's system of electing judges, for all of its potential faults, is working well in practice. There is no way to guarantee that a so-called "merit selection" system of appointing judges would produce more highly qualified appellate judges, if that were even possible.

Serious Flaws Plague the Chief Alternative to the Current System: The Pennsylvania Constitution would need to be amended to scrap Pennsylvania's current system of electing judges. To amend the Pennsylvania Constitution, Pennsylvania's General Assembly must pass the proposed amendment in two consecutive sessions, and the amendment must also be approved by Pennsylvania voters in a referendum.

Pennsylvania's practice of electing judges traces its history back to 1850, when the electorate approved a constitutional amendment providing for the partisan, popular election of all judges. Although judges' initial terms of offices, and the time when judges must stand for retention election, have changed since then, the elective process has remained otherwise unchanged. In 1969, Pennsylvania voters were given the chance to approve a constitutional amendment to replace the system of electing judges with an appointive system, but the voters defeated the amendment in a close contest.

There is little reason to think that the result today would be any different. Voters currently have the ability to select candidates seeking to serve on state appellate and trial courts. Why would the voters want to hand over some or all of that power to their Governor and legislative representatives, especially in the absence of any crisis involving the quality of state court judges or the manner in which they are campaigning for office?

The Commonwealth's two main proponents of an appointive system, Governor Tom Ridge and Pennsylvanians for Modern Courts, agree that entirely abandoning the elective system is too ambitious of a change to seek. Instead, they propose retaining elections for Common Pleas judgeships and using appointments to select judges to serve on the Supreme, Superior and Commonwealth Courts of Pennsylvania. The PMC further advocates allowing voters to cast votes in retention elections after appointed appellate judges have served an initial term in office. The PMC's "Blueprint for the Future of Judicial Selection Reform" is available for review on the Internet at http://pmconline.org/blue/text.htm. A report by the Committee of Seventy, which similarly favors adoption of an appointive system, can be accessed at http://www.seventy.org/judicialreform.html.

I see three serious problems with the PMC's proposed changes. First, those who oppose the concept of electing judges should object most vehemently to the continued election of trial court judges, yet the PMC's plan retains that feature of the current system. Trial court judges possess extraordinary power, because they act as the sole judicial decisionmaker at the trial court level. A biased trial judge cannot be offset by the votes of other, non-biased judges, as might happen on a panel of several appellate judges.

Second, because trial judges are elected in most every instance on a county-by-county basis, they can be more greatly influenced by targeted contributions than could an appellate court judge. A lawyer who practices in a small county could make a sizeable contribution to a candidate for judicial office in that county knowing that, if elected, the judge would preside over the lawyer's cases. A similar large contribution to an appellate court candidate would be less likely to achieve any bias in the attorney's favor, given that the appellate judge might not be assigned to hear the lawyer's cases or would be just one of several judges deciding them.

Third, having appointed state appellate judges stand for retention elections presents serious concerns. Today in Pennsylvania, retention elections are little more than an empty formality, because voters know that the judges they are voting to retain are judges the voters previously selected. Under the PMC plan, however, a retention election would give the electorate its very first opportunity to vote on a judicial appointee. I fear that this chance for the electorate to veto a judge whom the electorate played no role in selecting would cause appointed judges in the years, months and days leading up to a retention election to be much more concerned about public reaction to rulings than elected state appellate judges currently are.

Instead of the amalgam of partial solutions that the PMC plan offers, I favor several simple but necessary reforms.

Proposed Reforms: Currently, supporters of candidates for judicial office in Pennsylvania can make unlimited campaign contributions. And, the rules governing whether an elected judge can participate in a case involving attorneys or parties who contributed to the judge's election campaign contain few bright lines. To eliminate the unseemly impression some may have that judicial candidates are for sale, Pennsylvania should adopt judicial campaign contribution caps that are at least as strict as those that govern candidates for Congress. The rules of judicial conduct should further make clear that judges who have received contributions in excess of those limits from an attorney or a party must recuse himself or herself from deciding any case involving the attorney or party.

Pennsylvania should also consider offering matching campaign funds to judicial candidates who are willing to adhere to specified limits on campaign spending. While the U.S. Supreme Court has declared unconstitutional mandatory campaign spending limits, spending limits that candidates elect to observe, encouraged by matching campaign funds, appear to be lawful.

In conclusion, Pennsylvanians should not be embarrassed that they elect their state judges, for the quality of our Commonwealth's judiciary is admirably strong. To continue to attract and retain high quality individuals to serve as judges, both the federal and state legislatures should enact substantial judicial pay raises. Finally, and importantly, Pennsylvania's legislature should enact sensible campaign reform legislation to govern judicial elections.

This article is reprinted with permission from the September 10, 2001 issue of The Legal Intelligencer © 2001 NLP IP Company.