Theory and practice are often at odds — no more so perhaps than in American government.
In classic political theory, for example, democracy functions on the basis of an informed electorate electing its leaders. That theory, while never working perfectly, works well enough when selecting officials to executive and legislative branches of government.
But it has not worked well at all when voters have been asked to elect judges on statewide ballots. The technical nature of legal issues together with the expectation that judges will act in a nonpartisan manner has not been a good fit with electoral systems. Judges selected by election must live in a political milieu, yet must act as if they didn’t.
In fact, the federal level eschews any judicial elections. Judges are all appointed, from district court judges to the Supreme Court. Each is first nominated by the president and must then be confirmed by the U.S Senate.
The state picture, however, is different. More than 30 states elect at least some of their judges, but only six states, including Pennsylvania, elect all of its judges in partisan elections from local magistrates to the highest state appellate court.
Electing judges is not always a problem. On the contrary, a reasonable case can be made that local voters do gain some information about county judicial candidates during electoral campaigns — and do often enough make informed choices in these local races.
But in Pennsylvania, the greatest problem exists in elections to the three state appeals courts: the Commonwealth, Superior, and Supreme Courts. This year, eighteen candidates are running statewide for seats on these courts — twelve for three Supreme Court seats, three for one seat on the Superior Court, and three for one seat on the Commonwealth Court.
The problem is that the average Pennsylvania voter on Election Day will know almost nothing about the backgrounds and qualifications of these statewide judicial candidates. Whoever is elected in November — the informed electorate of democratic theory will not have had much to do with it.
Many believe the solution to this electoral anarchy is an appointive merit system. Such a system, as often described, might have a diverse nominating commission of citizens, former judges, and gubernatorial and legislative appointees. The commission would evaluate the credentials, perform interviews, check backgrounds, and recommend to the governor the names of qualified potential court nominees. Gubernatorial appointees would then need confirmation by a majority of the state Senate.
Why consider moving to an appointive system for appellate judges?
There are at least three compelling reasons for doing so. All of them illustrate how the theory of an informed electorate choosing judges has been subverted by the actual practice of doing so.
• Low turnout and low voter information: Appellate judicial elections are characterized by low voter information and the low voter turnout, typical of off-year elections. The majority of voters don’t participate in these elections and those who do typically have very little knowledge of candidate qualities. Consequently, candidates are elected based on factors that should have little or no relevance such as a recognizable name, ballot position, party endorsements, regional support or fundraising advantage.
• Money and more money: In 2009, two Supreme Court candidates alone spent almost $5 million. This year, especially with three open seats on the Supreme Court, the amount of money candidates will raise will surpass any previous judicial fundraising. Not only is money having a pernicious role in selecting judges but more and more of it is coming from law firms and other special interests that may have clients with cases in front of these very appeals courts.
• The Citizens United Effect: In 2010, the U.S. Supreme Court ruled that prohibiting nonprofits, corporations, unions and other organizations from limiting or controlling independent campaign contributions violated the first amendment. That has led inexorably to an increase in outside and special interest campaign contributions to judicial candidates, further eroding the role of the ordinary voter.
Collectively, these effects of electing appellate judges have left voters with declining confidence in the judiciary. Compounding these factors, recent scandals within the state judiciary provide additional motivation to consider the merits of an appointive system.
Let’s be clear: no system for selecting judges in a democracy is perfect. Merit systems have not been a panacea where they have been adopted. Sometimes they have proved elitist while other studies have questioned whether they produce better judges.
Indeed, one could argue that — far from perfect — merit systems are simply the better of two imperfect choices we have for selecting judges.
Still, merit systems do provide a rational alternative to the electoral roulette we now use to select appellate judges. And a merit system would go some way toward restoring public confidence and trust in the judicial system.
Perfect they may not be; but sometimes going from bad to better is good enough.