Pennsylvania voters will elect three new state Supreme Court justices Tuesday, but a campaign that smashed records for fundraising has raised the question of whether the ballot box is the best place for judges to earn their robes.
Candidates jostling for three open seats had raised more than $9.8 million, and total spending had eclipsed $11.4 million for the primary and general election with a week still to go in the race, according to nonprofit organizations tracking money in the race.
The influx of money for a spot on the state’s top court has renewed calls to seat appellate judges according to a merit system, rather than a campaign brawl that may reward the best fundraisers.
Lynn Marks, executive director of Pennsylvanians for Modern Courts, a nonprofit and nonpartisan judicial reform group, said judges should not run under the same system as governors, lawmakers and mayors.
“Those officials run on a platform of issues ‘of the day,’ they have constituencies, they listen to voters,” she said, “but judges make decisions based on individual cases before them and follow the law and the constitution, not what they said to supporters or what they said on the campaign trail.”
Lawmakers took a step toward changing the system last month, when the House Judiciary Committee passed bipartisan legislation that would institute a merit-selection system via an amendment to the state constitution. Another bill in the Senate would do the same.
Under the House legislation, a bipartisan citizen-nominating commission composed of lawyers and non-lawyers from across Pennsylvania would evaluate potential judges.
The Legislature would select eight commission members, with caucus leaders from both parties each selecting one lawyer member and one non-lawyer member. The governor would choose five members, and each would have to be from a different county; no more than three could come from one political party.
After evaluations, the commission would present a short list to the governor, who would choose one name for a judicial nomination. The Senate would confirm the nominee, who would receive a four-year term before facing a retention election. If retained, the judge would stand for retention every 10 years.
The legislation would apply to the Supreme, Superior and Commonwealth courts — the three statewide appellate courts. All other judges would still be elected as they are today.
“I personally believe that the integrity of our justice system requires that we select judges based on more than voter turn-out, name or fundraising ability,” Cutler said in a statement after the bill passed through committee. “I believe we should be looking for the members of the bar with the highest qualifications, not just the best political skills.”
Because it would be an amendment to the state constitution, the legislation would have to pass in two consecutive sessions and then go to a public vote.
Merit selection has been considered in at least the past three legislative sessions, but related bills have stalled each time. The Supreme Court race, and the money accompanying it, has returned the idea of merit selection to the spotlight as seven candidates fight for a spot on the bench.
Two nonprofit organizations, Justice at Stake and the Brennan Center for Justice, found the candidates, as of last week, had raised $9,826,380 during the 2015 primary and general elections. That shattered the previous record of $9,464,975, set in 2007.
Interest groups from unions to trial lawyers to party political action committees have funneled money to candidates. Attack ads financed by outside groups have added a political bent to the race; more than $6.7 million was spent on airtime for ads through Oct. 26, up by more than $2 million from 2007.
All of the that spending supports candidates who one day could decide important cases — including challenges to any public pension reform or whether partisan lawmakers’ have fairly drawn legislative districts. This election is also a chance for the Supreme Court to hit a reset button — to a degree — after an embarrassing explicit email scandal ensnared the state’s highest court.
“While Pennsylvania’s record-smashing judicial election may not be a shock, it’s definitely a shame,” said Liz Seaton, the interim executive director of Justice at Stake, which tracks spending in judicial elections. “The losers in this highly politicized election are really the people of Pennsylvania. Multimillion-dollar spending binges and waves of attack ads are no way to determine who serves on the state’s highest court.”