Before proposed constitutional amendments can become law, they must pass both houses of the legislature in two consecutive sessions and then be approved by voters. But the proposal for so-called merit selection of judges was tabled June 5 in a 13-12 vote by the Judiciary Committee before it could come up for a vote in the full House.
Committee chairman Ron Marsico (R., Dauphin), a supporter of the measure, said he doubts it will come up again before the legislature leaves for its summer recess.
"My gut feeling now is that it doesn't look good," Marsico said.
Proponents of the proposed constitutional amendment said it was needed to improve the quality of the state appellate bench and remove the taint created by fund-raising for judicial elections, which can run into the millions for seats on the State Supreme Court.
"The election of judges in Pennsylvania, especially on a statewide level, has created enormous problems," said Robert Reinstein, former dean of Temple University Law School and a professor of constitutional law. "To run, you have to be willing to raise enormous amounts of money. To think that you can have this system with all this money floating around without compromising judicial independence is equivalent to believing in the Easter Bunny."
Backers of the current system say it serves as a check against a potentially elitist and unaccountable judiciary.
"Why is there this periodic cry for changing the selection of our judges from an elective process to an appointive process?" Mark Phenicie, legislative counsel for the Pennsylvania Association for Justice, the state trial lawyers' association, asked in written testimony submitted to the House Judiciary Committee in March. "The voters are not demanding to give up their right to vote for appellate judges."
A pivotal development occurred June 1, when the Pennsylvania Pro-Life Federation, an anti-abortion group, informed members of the House Judiciary Committee that it opposed the measure and would weigh members' votes when making endorsements in the next election. A few days later, the committee voted to table the proposal.
"The pro-life movement in Pennsylvania has been historically opposed to so-called merit selection of judges, and that position has not changed," federation legislative director Maria Gallagher wrote in an e-mail to members of the committee. "So-called merit selection is an elitist system which places too much power in the hands of very few."
Marsico, who only a few days earlier believed he had enough votes to release the bill from committee, said the e-mail swayed several committee members to vote to table the measure.
Fueling the drive to end partisan election of judges is a recent history of high-profile scandals in Pennsylvania and the belief among critics of the current system that fund-raising by trial lawyers, business interests, and others have severely undermined the credibility and integrity of the bench.
In the most recent embarrassment to the state judiciary, Justice Melvin pleaded not guilty May 18 to criminal charges that she had used state legislative and judicial employees and state equipment in her 2003 and 2009 judicial campaigns. In all, Melvin raised $1,961,244 to run her 2009 campaign, while her opponent, Jack Panella, raised $2,705,356. The total, including in-kind contributions, was a record for a single-seat judicial race.
Last year, two Luzerne County judges were sentenced to lengthy prison terms for their roles in the notorious Kids for Cash case, seen as the worst case of juvenile-justice corruption in U.S. history. Prosecutors alleged that former judges Mark Ciavarella and Michael Conahan took millions of dollars in kickbacks from for-profit juvenile-detention centers that they filled with a steady stream of juvenile defenders. A disproportionate number of the offenders who appeared before the judges were incarcerated without any legal representation.
Former Supreme Court Justice Rolf Larsen was removed from the bench in 1994 following a conviction on criminal charges related to a scheme in which he persuaded a doctor to write prescriptions for his anti-anxiety and depression medications to other court employees, all in an effort to keep his treatment out of the public eye. In the late 1980s, eight Philadelphia state court judges were removed from the bench after it was disclosed that they had received cash payments from roofers union officials. Seven of the judges described the payments as gifts; one denied receiving payments altogether.
"We trust the voters, and we want the voters to have an opportunity to change the system," said Lynn Marks, executive director of Pennsylvanians for Modern Courts, which has been pushing to end elections for appellate judges. "The part that is ironic is that it is the groups that say we need to elect judges who are saying don't vote for this legislation." She added opponents take the position "we don't want the people to have the right to change their constitution."
A total of eight states, including Pennsylvania, have partisan elections for judges. Fifteen, including Delaware, employ the so-called merit-selection process, in which an independent panel screens candidates and then sends names along to the governor. In five states, including New Jersey, it is the governor who seeks out judicial candidates and then makes the nomination, subject to legislative approval.
That process much resembles the system employed by the federal government: Nominations are made by the President and then submitted to the Senate for confirmation. The federal bench is generally well regarded, but the process is hardly free of politics. Presidents seek nominees who are in good standing with their party, and as in Pennsylvania a complex screening process involving local political officials forwards names for consideration.
Michael R. Dimino, associate professor of law at Widener University Law School and a critic of merit selection, said studies have indicated no difference in the qualifications of judges in either an electoral or merit-selection system. The huge advantage of electing judges, he said, is that they are more accountable that way.
"Independence ... has a downside," he said. "An independent judge exercises policymaking discretion without accountability to the people."
Yet a study for the American Judicature Society, which studies judicial selection, ethics and other issues related to the bench, suggests that judges who are elected are more prone to ethical violations than judges who are selected by independent commissions. The study compared the rates of judicial discipline for judges in nine states with both elections and independent panels. It found that judges who were elected were disciplined at a rate 33 percent greater than judges selected by independent commissions.
Contact staff writer Chris Mondics at 215 854 5957 or firstname.lastname@example.org