A view from the ground: a reform group's perspective on the ongoing effort to achieve merit selection of judges.

• Author: Goodman, Shira J.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

INTRODUCTION

"[J]udicial reform is no sport for the short-winded," (1) has always been a catch phrase used to demonstrate that those seeking judicial election reform must be patient and must persevere. This description captures not only the lengthy constitutional amendment process required to institute judicial selection reform, but also the challenges that arise during the course of efforts to reform a fundamental governmental structure.

This Essay explores some of these challenges as well as some of the solutions the nonprofit, court reform organization Pennsylvanians for Modern Courts ("PMC") has developed to meet them. The composition and appointment of members to the nominating commission responsible for screening, evaluating, and recommending candidates for nomination to judicial office presents the most challenging area. This Essay, therefore, focuses mostly on this area, although it also identifies challenges arising in relation to other areas of a merit selection system. (2) It describes what has succeeded and what has not, in an effort to share some of the lessons PMC has learned with others who seek judicial selection reform.

Section I of this Essay addresses briefly the history of judicial selection in Pennsylvania. Section II describes the judicial selection reform movement and the background and growth of PMC, the leading agent for judicial selection reform in Pennsylvania. Section III describes the merit selection system that PMC has been trying to achieve for Pennsylvania's appellate courts and, more recently, for the trial courts in Philadelphia County. Sections IV and V enumerate the challenges PMC has faced along the way, as well as the measures it has taken to meet those challenges. The Essay concludes with some advice for others seeking to achieve judicial selection reform in their own jurisdictions.

1. THE HISTORY OF JUDICIAL SELECTION IN PENNSYLVANIA

   The Pennsylvania Constitution provides for the method of judicial selection in article V, section 13 of the state constitution: "Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve." (3) Two consecutive sessions of the Senate and the House must pass any proposed constitutional amendment to change the manner of judicial selection; each session lasts two years, and the identical amendment must pass each time by a majority vote. (4) Following each passage by the legislature, notice of the proposed amendment must be published across the state. (5) Once this has occurred, the electorate must approve the amendment in a statewide referendum vote. (6)

   After considerable debate, Pennsylvania's first state constitution in 1776 provided for a judiciary with seven-year terms--subject to removal by the General Assembly for "misbehavior" or "maladministration"--appointed by a twelve-member Executive Council, whose members were elected by voters of the state's twelve counties. (7) In the Constitution of 1790, most notable for creating the position of Governor to replace the Executive Council, the new chief executive was given the power to appoint judges who were to serve "during good behavior." (8)

   The judicial appointive system came under attack during the administration of President Andrew Jackson (1829-1837), amid the growing sentiment that all governmental office holders should be accountable to the voters and, therefore, elected. (9) During Pennsylvania's 1837 Constitutional Convention, efforts to move towards an elected judiciary were unsuccessful. (10) Nevertheless, the 1838 Constitution approved by the voters reduced the tenure of supreme court justices from life to fifteen years. (11)

   The critics of judicial appointments were not deterred and brought their demands for election to the chambers of the state Senate and House. In 1850, the voters adopted, after passage by the legislature, a constitutional amendment for the popular, partisan election of all judges (including all sitting judges), with vacancies to be filled by gubernatorial appointment until the next scheduled election. (12)

   This victory proved short lived; proponents of partisan elections soon found themselves defending their newly won system. At the 1872-1873 Constitutional Convention, the "election versus appointment" debate reignited with charges that now the political parties, instead of the governor, had a stranglehold over who reached the bench. (13) The resulting compromise increased the initial tenure of supreme court justices from fifteen to twenty-one years, but with no eligibility to serve a second term; voters subsequently approved the amendment. (14) Judicial vacancies henceforth required gubernatorial appointment and two-thirds Senate confirmation. (15)

   Aside from a brief but unsuccessful experiment with nonpartisan elections, (16) talk of changing the judicial selection system largely subsided for decades. The middle of the twentieth century brought only periodic spurts of interest--most notably, endorsements of plans for the appointment of appellate judges by the Pennsylvania Bar Association in 1947, (17) the League of Women Voters in 1956, (18) and by two commissions studying revisions to the Pennsylvania Constitution in 1959 (19) and 1963. (20)

   Then, during the 1967-1968 Constitutional Convention, the judicial selection debate erupted with renewed vigor on both sides. The result was to present the 1968 primary election voters with a new judicial article that retained partisan elections of judges, but with two key additions: one establishing retention elections for sitting judges seeking to continue in office after initial ten-year terms, (21) and the other allowing voters to vote separately on the issue of appointive selection of appellate judges during the 1969 primary election. (22)

   The article passed and, the following spring, Pennsylvania voters were asked to decide whether or not they wanted statewide judges to be elected or appointed. The vote was extremely close, but the appointive system was ultimately voted down in favor of maintaining the status quo. (23)

2. JUDICIAL SELECTION REFORM IN PENNSYLVANIA

   The 1969 vote was an enormous disappointment for those hoping to end almost 120 years of partisan judicial elections. Proposed constitutional amendments for the appointment of appellate judges continued to be introduced in the General Assembly, but languished without legislative action. (24)

   In 1988, the Pennsylvania Judicial Reform Commission was formed. Known as the Beck Commission, this blue-ribbon panel of civic leaders, public officials, legal professionals, and members of the judiciary was commissioned by Governor Casey and chaired by then-Superior Court Judge Phyllis W. Beck. The Beck Commission issued a report finding an appallingly low level of confidence in Pennsylvania's judiciary, in large part due to the system of electing judges, including the fundraising that went along with it. (25) The report presented "a sensible and achievable blueprint for meaningful judicial reform." (26) The Beck Commission's recommendations included a "mixed" system of judicial selection--retaining partisan elections for local trial courts, except where county voters specifically opted for an appointive system, and implementing an appointive method of selecting appellate judges. (27)

   The Beck Commission's report marked the beginning of a decade of unprecedented and intensive focus on the judicial system. Two scandals in particular received unrelenting media attention. The first occurred in the late 1980s, when numerous judges on the Philadelphia Court of Common Pleas and Municipal Court were found to have accepted cash from leaders of a local union. (28) Two of those judges received federal prison sentences and thirteen others who were implicated in the scandal either resigned or were removed from office. (29) The second scandal erupted in 1994, when, for the first time in the state's history, a justice of the supreme court was impeached by the House, convicted in the state Senate, and permanently removed from office. (30)

   In the midst of all this, those motivated to achieve meaningful judicial selection reform created PMC, with a particular focus on reforming the selection of appellate judges. The founders of PMC believed that real reform required a new statewide organization, separate from established bar associations and independent of government-appointed commissions. Since that time, PMC has worked to achieve a merit selection system for Pennsylvania's appellate courts and, more recently, for the trial courts in Philadelphia.

3. THE GOAL: WHAT MERIT SELECTION SHOULD LOOK LIKE IN PENNSYLVANIA

   PMC generally does not operate in the realm of the ideal; instead, PMC tends to work more in the realm of what is possible and practical. This requires an understanding of the political and cultural realities informing reactions of various audiences to proposals for judicial selection reform. Pennsylvania is a large state and is geographically, racially, and ethnically diverse. Sharp political divisions exist between the eastern and western parts of the state, with cultural and political clashes between the two major cities (Philadelphia and Pittsburgh) and the large rural area in between. As political events and elections during the past year have demonstrated, it is difficult to predict what Pennsylvania legislators and what Pennsylvania voters are thinking or what they might do. (31) This makes reform work all the more difficult. That being said, PMC has developed a preferred merit selection model, with core components essential for meaningful judicial selection reform.

   A viable merit selection system requires four components: (1) a bipartisan, diverse nominating commission that screens, evaluates, and recommends candidates for nomination to judicial office; (2) an executive...