Here’s a pop quiz: what two statewide offices are on the ballot in Tuesday’s General Election?
If you answered two seats on the Pennsylvania Superior Court you would be right. And I’d bet 90% of voters across Penn’s Woods would not have been able to get the correct answer.
The judiciary is vested with one-third of governmental power. Judges and justices make decisions that affect our lives every day, and they do so with relatively little scrutiny, and certainly with far less coverage than the legislature and the governor receive.
Pennsylvania’s court system begins at the Magisterial District Judge level, moves upward to county-level Courts of Common Pleas, and then to three statewide appellate courts. Most voters are familiar with the state Supreme Court, but we also elect judges to the Commonwealth and Superior Courts. Since very few cases actually are accepted for review by the Supreme Court, the Commonwealth and Superior courts are often the courts of last resort.
The power – or abuse of power – by the courts was on full display last year when the Pennsylvania Supreme Court trampled the constitutional right of the legislature to draw congressional district lines and out-sourced the gerrymandering of a new map to a California college professor and then by judicial fiat ordered that new map into effect.
Since most of the offending justices were elected to ten-year terms in 2015, voters will not get a chance to hold them accountable at the ballot box until 2025 – and then they stand for a retention election rather than for re-election. Clearly the judiciary is far more insulated and unaccountable than the other two branches of government which makes the election of judges and justices even more important.
Voters, however, frequently go into the polls unaware of who the candidates are, their qualifications (or lack thereof), what their judicial philosophy might be, what the appellate courts actually do and, frankly, even that the offices are on the ballot.
Statewide judicial offices are low profile races on which comparatively little money is spent campaigning with candidates struggling for media and voter attention. Given the power vested in the judiciary some structural changes are in order.
There are those – mostly government insiders – who support so-called “merit selection.” This process would end the election of judges and justices and instead have them appointed by the governor and confirmed by the state legislature. That, however, would deprive voters of any direct say in fully one third of their state government.
Another proposal would be to elect appellate court judges and justices by region. Regions would be redrawn every ten years following the census just like is done for congressional and legislative districts. This would make it easier for judicial candidates to become better known to voters. It would also bring some balance to the appellate courts which are now heavily dominated by judges and justices from Philadelphia and Allegheny counties.
A snapshot of public opinion on this issue was taken during the 2019 Fall Keystone Business Climate Survey conducted by the Lincoln Institute. The survey of business owners and chief executive officers found 47% support the election of judges/justices by region, 28% support continuing statewide elections, 15% favor appointment by merit selection.
The survey also asked whether judges/justices should continue to be elected for ten year terms. Twenty-nine percent think ten years is an appropriate term length for the statewide judiciary. Forty percent favor giving judges/justices six year terms; 26% think four year terms are sufficient.
As mentioned earlier appellate court judges/justices stand for a yes/no retention vote rather than for re-election which would give other candidates the opportunity to seek those offices. The 2019 Keystone Business Climate Survey found 71% believe that judges/justices should stand for re-election, while 24% say we should continue to hold retention elections.
Any change to the manner in which appellate court judges and justices are elected would require a constitutional amendment. In Pennsylvania that is a lengthy and difficult process requiring passage by two consecutive sessions of the legislature and then approval by voters in a referendum.
No consensus for change has yet emerged. But, the continued judicial activism of the current Supreme Court which periodically steals or tramples powers of the legislative branch, could provide an impetus for reform. It is indeed time to make structural changes that make the judiciary more accountable to We the People.
(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is [email protected].)
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