HARRISBURG — There’s a lot to hate about judicial elections in Pennsylvania.
Candidates have to walk a line between keeping quiet about issues that could come up on the bench and waging effective campaigns. Contentious races such as the one waged this year for the state Supreme Court end up costing millions and generating negative ads. Voters often know little about candidates, bolstering the idea that politicking rather than qualifications can be the key to winning a seat on the bench.
But whether all that means last week’s election for three Supreme Court seats — swept by Democrats — will fuel the movement to promote merit selection of judges is unclear.
“[Tuesday’s election] has really highlighted what the current process is. … I do think it was a good conversation starter,” said state Rep. Bryan Cutler, R-Lancaster, whose proposed constitutional amendment for merit selection was voted out of the House Judiciary Committee last month.
“It will be interesting to hear what the conversation sounds like [in Harrisburg]” following last week’s election, said Rep. Madeleine Dean, D-Montgomery, a co-sponsor of Mr. Cutler’s bill, and also a former trial lawyer.
Under the proposal, a bipartisan committee would review applicants’ qualifications and recommend a short list to the governor for nomination. Nominees would need to be confirmed by the Senate. Each judge would sit for a four-year term, before standing for nonpartisan retention election for a 10-year term and then every 10 years thereafter.
The nominating committee would be made up of 13 members: five appointed by the governor (no more than three from one party and all five from different counties) and eight appointed by the General Assembly (two each from the four caucuses — half lawyers and half non-lawyers). The bill would only apply to seats on the Supreme, Superior and Commonwealth courts.
As with any proposed constitutional amendment, the bill would have to pass both the House and the Senate in two consecutive legislative sessions, then be approved by voters in a statewide referendum.
Twenty-two states have at least some competitive elections for state Supreme Court and appellate court judges, though Pennsylvania is one of only eight states that have partisan elections (where candidates have party labels) for these positions, according to Justice at Stake, a nonpartisan group.
Last week’s election broke national spending records for a state Supreme Court contest.
“I do think that the large amount of money that was spent certainly gets people’s attention,” Mr. Cutler said.
Total documented spending in the race was $16.5 million, according to an analysis by Justice at Stake and the Brennan Center for Justice at New York University School of Law.
“This election, with record amounts of money spent, and so many negative attack ads, has just renewed interest in getting judges out of the campaign and fundraising business. … It did show how it just doesn’t make sense to have judges in such partisan and expensive races,” said Lynn Marks, executive director of the nonpartisan Pennsylvanians for Modern Courts.
Judicial candidates typically pledge not to engage in false or misleading advertisements, and their campaigns honored that request by airing upbeat autobiographical spots. But two outside groups, the Republican State Leadership Committee and Democrat-supporting Pennsylvanians for Judicial Reform, took up the cudgel with attack ads whose claims were often thinly sourced or misleading at best.
PJR, for example, aired an ad accusing President Judge Mike George of Adams County of “routinely hand[ing] out lenient sentences” — a claim apparently based solely on two cases over a 15-year judicial career.
In another ad, it accused Commonwealth Court Judge Anne Covey of having “filed improper information on campaign finance forms” — apparently because her 2011 campaign listed several donations on the wrong page of one report — and of claiming to author legal articles she didn’t write. No substantiation was provided for the latter charge, and after the Covey campaign threatened legal action, the spot was replaced with one that focused on the fact that Judge Covey was not recommended by the state Bar Association.
The Republican attacks focused solely on Democrat Kevin Dougherty for the Philadelphia judge’s 2002 decision to place a 10-year-old girl in the custody of an aunt who had a previous murder conviction and was later accused of horrific acts of abuse.
Judge Dougherty granted that placement with the consent of family members and child-welfare workers, who did not inform him of the woman’s criminal past. While a subsequent lawsuit sued child-welfare officials for their handling of the case, the judge was never accused of wrongdoing.
Despite big losses by Republican judicial candidates last week, a number of Republicans said that didn’t change their view on the issue.
The state Republican Party chairman, Rob Gleason, said he is an advocate of merit selection, though he said he has been for some time.
“The person with the most money becomes elected a judge? That doesn’t make any sense,” he said.
Sen. Stewart Greenleaf, R-Montgomery, head of the Senate Judiciary Committee, supports having elected judges, though he said he would support some overhaul to the current system.
Senate President Pro Tem Joe Scarnati, R-Jefferson, would be hesitant to endorse the idea of merit selection because of concerns about rural representation, said Drew Crompton, chief counsel for the Senate Republican Caucus.
“The alternative [to electing judges] is that some person or group of people will be making that decision,” said Sen. John Eichelberger, R-Blair, a member of the Judiciary Committee.
First Published: November 9, 2015, 5:00 a.m.
