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This November, the U.S. Senate will have to decide whether Harriet Miers belongs on the U.S. Supreme Court. Senators will have to judge a woman they barely know, a lawyer whose qualifications are obscure, and whose judicial philosophy is almost a mystery.
Allegheny County voters know just how that feels.
In fact, while senators face this conundrum only a couple times in a generation, voters here face it a couple times a year -- whenever there are judicial candidates up for election.
This November, there are 10 such candidates, seeking to fill seven openings in Allegheny County's Common Pleas Court alone. Voters will also have to decide whether to keep another six county judges who are up for "retention" -- a straight up-or-down vote judges face every 10 years. A similar up-or-down vote awaits two state Supreme Court justices, Russell Nigro and Sandra Schlutz Newman.
On Nov. 8, it will be up to voters to decide how qualified those candidates are. But perhaps the bigger question is: How qualified are we to make that decision?
Elsewhere in this issue, City Paper
looks at the difficulties facing judicial candidates -- ranging from the unseemly appearances that can arise from campaign fund-raising activities to the mysteries of the American Bar Association rating process. We also look at two candidates whose qualifications -- though ample -- appear to have little to do with their prospects for election.
For now, though, we'll look at whether we should elect them at all.
Part of the problem with electing judges is that -- even compared to other politicians -- it's hard to figure out what judicial candidates actually think.
If you could ask a judge anything, it'd probably be something like "Are you going to lock criminals up and throw away the key?" or "How will you treat a woman who wants protection from an abusive husband?"
Here, however, is what the League of Women Voters asked judicial candidates in the May primary:
"Do you have any specific suggestions for improving the administration of justice in Allegheny County?"
That's a worthy question. But it left voters choosing between answers like "courts must make every effort to be accessible and prompt," or "We must elect highly qualified judges."
Until recently, such questions were just about the only ones that could
be answered. Election rules prevented candidates from speaking on issues that might come before them in court. Doing so, it was thought, would taint their judgment -- or at least cast doubt on their ability to rule fairly. But in 2002, most such prohibitions were tossed out by a 5-4 Supreme Court decision, in which Antonin Scalia ruled that "the First Amendment does not permit [holding] elections ... while preventing candidates from discussing what the elections are about."
Still, the decision sat uneasily with some. "Judges ... are not political actors," Justice Ruth Ginsburg wrote in a dissent. "They must strive to do what is legally right, all the more so when the result is not the one 'the home crowd' wants." The change was opposed by the American Bar Association (whose judicial code of ethics still sniffs that "merit selection of judges is a preferable manner in which to select the judiciary"). And even today, many candidates are loathe to talk about their judicial philosophy.
Joseph Mistick, a Duquesne University law professor and veteran of a statewide judicial run himself, says sometimes this hesitancy is due to judicial rectitude. But, he adds, "I think some of them use that as a dodge" -- a Harriet Miers-like attempt to say as little as possible for fear of alienating potential support.
For his part, Mistick says his failed campaign for Pennsylvania Commonwealth Court was "as much fun as you can have with your clothes on." And he says there is some value in electing judges.
"Some find running for office daunting: You could be very shy but have a brilliant legal mind," he admits. "But if you can't mix with the folks on whom you'll be sitting in judgment, maybe you don't have the understanding of people to judge them fairly."
The problem, say some, is that there are so many candidates -- more than two dozen in Allegheny County's May primary alone. Thus, the winner can be determined by the vagaries of ballot position and party endorsements. And minorities can suffer in the process.
A 2001 American Bar Association survey, for example, showed that of nearly 400 county judges across the state, just 29 were African American. Almost all of those served in Philadelphia. And even in Philly, where nonwhites are a majority, the majority doesn't rule -- at least not from the bench. According to figures provided by state Sen. Anthony Williams, a Democrat from the area, only about one-third of judges there are non-white. (As for Allegheny County, while former Steelers great Dwayne Woodruff appears a likely winner this November, the last time an African American was elected to the county bench was in 1999.)
The picture is equally discouraging in the state Supreme Court and other statewide courts. "Only one out of 31 statewide jurists are a racial minority," says Lynn Marks, executive director of Pennsylvanians for Modern Courts. "There's only been one African American on the Supreme Court ever. That's inexcusable in a state like this" where 15 percent of the population is non-white.
"And we're actually losing ground," says Williams. "I think of 11 Philadelphia candidates who filed in the last election, only two people of color got elected." Williams has drafted a bill to have Philadelphia judges selected from a pool of applicants approved by a bipartisan commission. Commission members would be chosen by party leaders and public officials ranging from the governor to the public defender's office.
But Williams says the measure is often opposed by those he wants to help. "People think you're taking away their right to vote," he says. "I've been in front of an African-American women's voters group that was squarely against it. But the more we discussed it, they had to admit that there were serious problems with the system we have now."
"To me, this breaks down along party lines," says Russ Diamond of PaCleanSweep. "You'll have more Republicans say, 'Oh, judges need to be appointed,' while I think Democrats would lean more toward majority rules. Being a Republican, I do favor the appointment process."
That said, Diamond's organization is using the democratic process to get rid of judges he opposes. PACleanSweep, an anti-incumbent insurgency created in the wake of the state legislature's pay-raise fiasco, is urging voters to vote against the two Supreme Court justices up for retention. By countenancing such legislative shenanigans, says Diamond, Nigro and Newman have lost sight of their job: to follow the state constitution. "You use the tools that you have," he says. "If there were a petition we could circulate to impeach judges, we'd use that. This is my way of taking ownership of my constitution. That constitution doesn't belong to the judges; it belongs to me and my family and my neighbors."
Still, Diamond says, "The problem with giving full power to the people is the danger of mobocracy. On the other hand, the danger of appointees is cronyism." For example, Diamond is "not a big fan" of Harriet Miers. "It's like the president was supposed to find the best legal mind in the country, and he just looked over his shoulder."
Perhaps, Diamond says, judges could be appointed by "a non-partisan citizen's commission. They could take a look at applications, and name the people who they think ought to be the judges."
In fact, that's just what Lynn Marks is proposing. "We want something in between Pennsylvania's process -- where everybody is elected -- and the federal process, in which it's entirely appointees," Marks says. Marks' group wants statewide judges appointed by the governor from a list compiled by a bipartisan commission, made up of lawyers and non-lawyers alike. After a four-year stint, the judge would be up for a retention election, "So the people have the ultimate decision."
Similar hybrids are used in numerous other states, but bringing such a system to Pennsylvania would require amending the state's constitution. But Mark says it's worth the effort. "I've talked to a lot of judges who have gone through the process and think it's a horrible way to choose people for a position. I don't blame the judges or the candidates who raise money and put up ads. I blame the system. It forces them to run a very partisan campaign for a non-partisan job."
Of course, even under Marks' system, judges will still face a political reckoning. Wouldn't judges worry about a retention vote -- and perhaps adjust rulings on controversial cases accordingly?
Marks says she's never heard a judge admit to letting political considerations trump their honest judgment. "But a lot of them say they look over their shoulders," she acknowledges. "They worry about retention even though they know most judges are retained. Any judicial selection plan is going to be political."
Mistick agrees. "People on one side say we should have them be appointed, because there's too much politics in elections," he says. "And people on the other side say we should elect them, because there's too much politics in appointments. And you know what? They're both right."