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Lawmakers propose removing state judges from Pennsylvania ballots

| Monday, Dec. 2, 2013, 12:01 a.m.

Jaye Cawkins stepped out of her polling place not entirely sure about what she'd just done.

Like many of the 1.6 million people who voted in Pennsylvania on Nov. 5, Cawkins didn't know much about the judicial candidates on the ballot. They're not like other politicians, who knock on doors for votes, run races with more media coverage and compile easily-digestible records of their votes, she said.

“There's no way you can sit and go over every one” of a judge's decisions, said Cawkins, 56, of the North Side.

Pennsylvania is one of seven states that elects judges in partisan elections, according to the American Bar Association. Two state representatives — Bryan Cutler, R-Peach Bottom, and Brian Sims, D-Philadelphia — introduced a bill to change that.

They propose establishing a commission with no politicians to select candidates for Supreme, Superior and Commonwealth courts. (Court of Common Pleas judges would remain elected.) The governor would pick nominees from the commission's list and the Senate would confirm or reject them, a process known as merit selection.

Proponents of the change, including former U.S. Supreme Court Justice Sandra Day O'Connor, say judges' jobs shouldn't depend on fundraising prowess and popularity. The liberal policy group Center for American Progress raised an alarm about such elections with a study released in October that found judges imposed harsher sentences as their re-elections neared. The study did not include Pennsylvania.

But people such as Cawkins are wary of putting a branch of government out of voters' direct reach.

“They should be voted in,” Cawkins said.

Similar bills come up regularly but never make it into law, said Rep. Tom Caltagirone, minority chairman of the House Judiciary Committee and a state representative since 1977.

“The way you have checks and balances is at the ballot box,” said Caltagirone, D-Reading.

Judicial scandals in recent years give efforts such as the Cutler-Simms bill a sense of urgency, proponents of merit selection say.

In 2006, unpopular and questionable rulings by the Pennsylvania Supreme Court on the legalization of gambling and the Legislature's middle-of-the-night pay raise prompted calls for reform and led to former Justice Russell Nigro losing his seat in a retention vote. Since then, the so-called “kids-for-cash” scandal put two Luzerne County Common Pleas judges in jail, and former Supreme Court Justice Joan Orie Melvin was convicted in a public corruption scandal. She's appealing part of her sentence.

“It's a hot topic,” and not just in Pennsylvania, said Rebecca Love Kourlis, a former Colorado Supreme Court justice and executive director of the University of Denver's Institute for the Advancement of the American Legal System, which supports merit selection.

Minnesota lawmakers are considering switching to merit selection, while Oklahomans might move from merit selection to partisan elections, Kourlis said.

“Pennsylvania is sort of in everybody's sights, to see how it unfolds,” Kourlis said.

Falling confidence in the judiciary drives the desire to change how judges are picked, Kourlis said.

“It's a function of the fact that the judiciary is now seen as political. Not so long ago, I think that most people believed that judges were not political actors, that they were trying to make decisions on the basis of the law and the facts,” Kourlis said. That changed “because of some of the hot-button issues over the last couple of decades.”

U.S. Supreme Court judges are not elected, but polls on the high court provide a window into how controversial rulings can shape public perception.

The court enjoyed an approval rating of 62 percent, with 29 percent disapproving, in 2000, according to Gallup. As a divided court struck down anti-gay marriage statutes, upheld President Obama's health care law and eliminated some campaign finance limits, approval fell to 46 percent, with 45 percent disapproving, according to a Gallup poll released Oct. 4.

Pennsylvanians for Modern Courts, a Philadelphia-based advocacy group, long has led the charge for judicial reform. Executive Director Lynn Marks admits it's tough to rally people around the issue, but said judges shouldn't have to campaign or take donations like other politicians.

“We think Pennsylvanians deserve judges that are chosen based on their credentials, not because of political connections, or where they live, or how much money they raise ... or where their name appears on the ballot,” Marks said. In races where voters know little about candidates, ballot placement can affect outcome, Marks and others have said.

But merit selection doesn't remove politics from the process — it just shrinks the number of people who select judges, said Vic Stabile of Carlisle, who won a Superior Court seat this year in the state's top-balloted race.

“If you can get your message out in front of people, they have a chance to evaluate you as an individual; they have a chance to evaluate your experience,” Stabile said.

Getting that message out requires cash. Even for relatively low-profile judicial races, a statewide campaign costs hundreds of thousands of dollars — much of which comes from lawyers who might appear before the winning judge. A trial lawyers' political action committee, the Committee for a Better Tomorrow, gave Stabile $40,000. When he ran unsuccessfully in 2011, the PAC gave his opponent, Superior Court Judge David Wecht, $300,000.

“When I spoke with them, I told them it didn't matter to me whether you supported me or you didn't, and it doesn't matter to me how much money you gave me,” Stabile said, noting it's illegal for judicial candidates to solicit campaign donations.

Judges decide whether to recuse themselves. “I would expect that if their association would appear before the court, that that would be an issue that would have to be looked at very carefully,” Stabile said.

Mike Wereschagin is a Trib Total Media staff writer. Reach him at 412-320-7900 or mwereschagin@tribweb.com.

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