The Questionable Case for “Merit Selection”
Apr 28th, 2008 | By Dan Pero | Category: Judicial Elections, Pennsylvania, State Battlegrounds |
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The push to replace democratic judicial elections in Pennsylvania with a Judicial Selection Star Chamber – where a group comprised mostly of lawyers meets behind closed doors to pick judges – seems to be on the defensive. A recent op-ed in the Philadelphia Daily News by attorney Gerald McOscar pointing out the problems with this scheme has elicited a lengthy response from Shira Goodman, Associate Director of Pennsylvanians for Modern Courts, which inadvertently exposes the crumbling intellectual foundation supporting PMC’s plan.
First, Goodman protests that the proposed plan “would implement merit selection only for the three appellate courts.” In other words, those who want to protect democratic elections shouldn’t worry because voters would lose their constitutional right to vote for judges who sit only on the most important courts. … but we’d still be able to decide which judges would adjudicate traffic tickets. Thanks, but hardly reassuring.
Second, Goodman claims “judges are different from other public officials” in that they “are sworn to act impartially and faithfully uphold and apply the law” regardless of their personal views or the views of their contributors. Of course, there is no evidence given that appointed judges are more independent than elected judges – in fact, a scholarly study published by the University of Chicago Law School suggests just the opposite.
Plus, as everyone knows, judges in recent decades have routinely strayed from simply applying the law and now habitually assert their own political views by inserting themselves into economic and social questions that were once the domain of elected legislatures. Judges that exceed their authority should be held accountable – and the best way to ensure judicial accountability is through judicial elections, as the authors of Pennsylvania’s Constitution well understood.
Third, Goodman suggests that the right to vote is protected because only the people of Pennsylvania themselves can enact the constitutional amendment required to abolish judicial elections. This view represents a serious misunderstanding of one of the most fundamental principles of American democracy – namely the duty of government to protect the rights of the minority.
Even if a “majority” of Pennsylvanians can somehow be persuaded to give up their constitutional right to vote for judges, so what? In our democracy, Voter A and Voter B cannot conspire to take away the rights of Voter C.
The question here isn’t who “trust[s] the voters” as Pennsylvanians for Modern Courts shallowly asserts; it’s who trusts democracy? Why are proponents of “merit selection” so afraid to let the people into the courtroom?
A few quick points in response. First, we distinguish between appellate courts and trial courts because the problems inherent in elections, especially the increasing expense and involvement of special interests are more pronounced at the appellate level. Also, the vast majority of folks who find themselves in court are in the Courts of Common Pleas, the Municipal and Magisterial District Judge Courts and yes, even the Traffic Courts. They do not think these courts are unimportant and either do we.
Second, you have misrepresented what the authors of the Chicago study — Choi, Gulati and Posner — studied and discovered about judicial independence. They defined independence as the frequency with which a judge dissented from opinions written by judges of the same political party. This definition itself is unusual, but more importantly, the authors found no statistically significant difference between the independence of appointed and elected judges. They did, however, conclude that elected judges are “more politically involved, more locally connected, more temporary and less well-educated than appointed judges. They are more like politicians and less like professionals.” More information about this study will soon be available on our blog, http://www.judgesonmerit.org.
Third, if the people of Pennsylvania vote to amend the state constitution in a procedurally correct referendum, that will be a legitimate act of democracy. As in any election, some will be happy with the outcome and others will not, but that’s how democracy works. And we trust the process — that’s why we want to let the people decide.
Ms. Goodman,
In response to your comments:
First, I’m pleased that (finally) you don’t dispute the fact that the plan supported by Pennsylvanians for Modern Court would abolish every Pennsylvania citizens’ constitutional right to vote for judges who sit on the most important courts in the state.
Second, I will let Professors Choi, Gulati and Posner speak for themselves:
** “The conventional wisdom [that appointed judges are superior] reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office.” (pg. 1, emphasis added)
** “Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view.” (abstract)
** “ … the data does not support the received wisdom that appointed judges are more independent than electoral judges.” (pg. 20) In fact: “Judges subject to partisan election have the highest independence.” (pg. 19)
** “In a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common.” (pg. 1)
** “ … when many people participate in a decisionmaking process, aggregation of information occurs, which can produce more accurate results than when the decision is made by only one person.” (pg. 1)
Third, your argument that allowing Voter A and Voter B to conspire to take away the constitutional rights of Voter C is “how democracy works” reflects a profoundly warped understanding of democracy. Democracy does not mean that 50% + 1 of the population (the majority) gets to deny the 50% - 1 of the population (the minority) their constitutionally protected rights. When my candidate for governor (or judge) loses, I don’t lose my rights; but if the plan you are pushing succeeds, all Pennsylvanians will lose their right to vote for judges to the most important courts in the state.
[…] relation to how judges are picked. Second, this part of the study was completely misrepresented by American Courthouse in a post against Merit […]