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No merit in merit selection

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By Dan Pero
Monday, Feb. 18, 2013, 9:00 p.m.
 

The trial of suspended state Supreme Court Justice Joan Orie Melvin is being used to resurrect a bad idea turned down repeatedly by Pennsylvania legislators. Two state senators have introduced legislation to abolish judicial elections and replace them with a system known by its supporters as “merit” selection. But the system is hardly the silver bullet its proponents claim.

Under merit selection, judges are chosen by a small commission instead of by the people or their elected representatives. One major problem with these commissions is that they are typically dominated by legal special interest groups, such as state bar associations and trial lawyers associations, despite attempts to balance the commissions with lay members.

Consider Missouri, the birthplace of merit selection. A few years back, the former president of the Missouri Association of Trial Lawyers was nominated to fill a vacancy on the state Supreme Court. His nomination was made possible by a merit selection commission that included both a former and current board member of the Missouri Association of Trial Lawyers, plus the wife of one of the state's most prominent trial lawyers.

Merit selection proposals in Pennsylvania call for the creation of a 15-member Appellate Nominating Commission, with seven “public” members and four each appointed by the governor and the General Assembly. Here's where it gets murky: All four commissioners appointed by the General Assembly must be lawyers, along with two of the governor's commissioners. The seven “public” members, according to the legislation, will be nominated by “groups located in Pennsylvania.” Such “groups” are likely to include trial lawyers, the state bar and other legal special interests, which will result in lawyers dominating the nominating commission.

Where is it written in Pennsylvania's Constitution that lawyers should have more power to choose judges than teachers, firefighters, police officers, plumbers or anyone else for that matter?

One of the primary claims of merit selection proponents is that this system removes politics from judicial selection — certainly an honorable goal. Yet merit selection creates a process every bit as political as elections, but far less transparent.

While merit selection advocates point to Justice Melvin's trial to support their claims, the idea that judges chosen under merit selection, rather than by the people, are somehow more virtuous doesn't hold up to public scrutiny.

In New Mexico, for example, state Rep. Dennis Kintigh recently proposed a “serious review of how the judiciary and legal profession as a whole is held accountable” under the state's merit selection system. Kintigh cited several recent incidents that “have diminished and tarnished the reputation and standing” of the state judiciary, including judges cited for drunken driving, cocaine possession and “cavorting with prostitutes.”

Politics will always play a role in judicial selection — and any system chosen will produce good judges and bad judges. The critical point is to keep the process open, transparent and accountable. Merit selection accomplishes none of these goals.

Dan Pero is president of the American Justice Partnership, an organization dedicated to promoting legal reform at the state level.

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