Earlier this year, the Pennsylvania Judiciary Committee approved a measure, HB 111, that would replace the election of appellate court judges — PA is only one of seven states that still has partisan elections –with an appointment system. Since it amends the state Constitution, the bill must be approved in successive two-year legislative sessions. Judicial merit selection bills have been introduced in past sessions and have never received House or Senate approval in one session, much less two. The business community, which supports a move to merit selection, cites the heavy influence of the trial bar in the legislative process.
Depending on how it’s structured, a system of selection of trial and appellate judges is better for the business community than the election of judges, partisan or nonpartisan, according to Cary Silverman, partner with Shook Hardy & Bacon. Silverman and Shook Hardy’s Mark A. Behrens, wrote “The Case for Adopting Appointive Judicial Selection Systems for State Court Judges”*, a fifteen year-old article published in the Cornell Journal of Law and Public Policy, which he says is cited to this day.
Q: How many states still elect judges?
A: It depends on the level of the court. For state high courts, 38 states have some type of judicial elections. Seven of those states have partisan elections. Fourteen states have nonpartisan elections. Seventeen states have uncontested retention elections after initial appointment. The remaining 12 states grant life tenure or use reappointment of some type for their highest courts.
Q: Why is a selection system better for the business community?
A: Generally, a selection system gives business the predictability it needs. Elections lead to volatility, a lot of back and forth in the law that makes it more difficult for businesses to plan. But it all depends on how the selections system is structured; the trial bar can inordinately influence them just as they can the elections. I’m not familiar with the bill in Pennsylvania* but generally the influence of the lawyers, especially the bar associations, on the process should be kept in balance. The trial bar tends to be every active in bar associations and can use that influence on the nominating process.
Q: Give us an example of one of the better selection systems.
A: Delaware has a selection system with limited bar influence on the commission that sends nominees to the governor. Those appointed by the governor must be confirmed by the Senate. Under the law, the courts are required to have political balance.
*In Pennsylvania, the Appellate Court Nominating Commission would consist of 13 members:
- Five appointed by the governor — no more than three from one party; five different counties;
- Eight by the General Assembly – two from each of four caucus leaders, half lawyers and half laypeople.