TESTIMONY OF ANDRE' L. DENNIS
CHANCELLOR, PHILADELPHIA BAR ASSOCIATION,
BEFORE PENNSYLVANIA SENATE JUDICIARY COMMITTEE
REGARDING MERIT SELECTION OF JUDGES
Tuesday, February 16, 1993
Port of History Museum, Penn's Landing
Good morning. My name is Andre' L. Dennis and I am a partner with the Philadelphia law firm of Stradley, Ronon, Stevens & Young.
I also have the privilege of serving as Chancellor of the Philadelphia Bar Association during 1993. With me is Lawrence J. Beaser, a partner at the Philadelphia firm of Blank, Rome, Comisky & McCauley, and Chancellor-elect of the Philadelphia Bar Association.
We are very pleased to be here today on behalf of our more than 12,000 members, and to communicate to you our very strong support for a proposed constitutional amendment which would change the way we in Pennsylvania choose our judges.
Initially, I want to stress that the Philadelphia Bar Association supports merit selection not solely as a result of our embarrassment over the present Supreme Court controversy, but because we firmly believe that a change to merit selection will give the people of Pennsylvania a more distinguished, more independent and more representative appellate bench. We deserve the very best our profession has to offer, and are confident that can be accomplished if we give up the political election of judges in favor of merit selection.
Our support for merit selection predates the recent events surrounding our Supreme Court. It predates another embarrassing situation which you may recall - the Roofer's scandal which broke in 1986 and dominated headlines in Philadelphia and across the state for more than two years. In fact, our support for merit selection of judges goes back much further. A chronicle of the Association's 150th Anniversary in 1952 proudly describes the Association's "active campaign of information and education in support of the 'Pennsylvania Plan' for improving the caliber of the judiciary through adoption of a constitutional amendment providing for a better method of judicial selection." That "better method" of selecting judges was an early precursor to the merit selection plans under consideration here today.
The occasional scandals involving judges provide colorful headlines and may do more to focus attention on the cause of merit selection than anything else possibly could. However, many of our judges are honest, hardworking, and indeed, bring honor and dignity to the courts of this Commonwealth. Unfortunately, these good judges are often tainted with the broad brush of condemnation that scandal brings. Moreover, under our present system of choosing judges, those good, honest, hard-working judges would seem to have reached the bench despite the system and not as a result of it. We can only guess at how many men and woman who are highly qualified for the bench have chosen not to undergo the elective process, and we can ill-afford to lose them.
Most of the arguments in favor of changing from the popular election of judges to a merit selection system focus on the problems inherent in the elective process itself. To win election to the bench, a successful judicial candidate must not prove to voters that he or she will be a good judge but instead must persuade political party bosses that he or she should be a candidate.
Having received the necessary party endorsements, a judicial candidate then faces an even more formidable task under our present system. In 1988, the Report of the Governor's Judicial Reform Commission (the "Beck Report") reported that "A successful judicial campaign for statewide office today requires effective -- and expensive -- communication in order to reach millions of voters with a message that is, paradoxically, often devoid of any meaningful content. Support from the political machines is, of course, important but not sufficient in itself to assure victory. .... [T]he judicial candidate must also respond to the technological challenges of radio, television, newspapers and sophisticated Madison Avenue techniques of advertising, all of which require exorbitant amounts of money."
The Beck Report went on to note that in 1983, the successful candidate for Supreme Court raised campaign funds totalling almost $193,000. By 1989, the amount raised by the successful candidate had risen to more than $1.4 million, more than half of which was contributed by members of the legal profession.
Fundraising by judicial candidates raises troubling issues which are qualitatively different from those faced by candidates for other elective offices. Candidates for non-judicial office are able to garner financial support from those who believe in their stated positions and ideology.
For fundraising, judicial candidates seek out their natural constituency: the members of the bar. Paradoxically, the Judicial Canons which establish the ethical rules governing judges appear to be at odds with the notion of campaigning for judicial office and fundraising, particularly among lawyers.
Canon 1 of the Judicial Code provides, "A judge should uphold the integrity and independence of the judiciary." Canon Two provides, "A judge should avoid impropriety and the appearance of impropriety in all his activities." Canon 3 provides, "A judge should perform the duties of his office impartially and diligently." That candidates for judicial office must solicit and raise campaign funding from attorneys, some of whom later will certainly appear before the successful candidate, implicates aspects of each of these Canons. And as the pressures to run a well-funded campaign continue to escalate over the years, so will the temptations to cut ethical corners. I submit to you that that is a very poor way for anyone to commence a career on the bench.
These are only some of the reasons why the Philadelphia Bar Association initially took a stand in favor of merit selection of judges, why we strongly endorsed the recommendations of the Beck Commission in 1988, and why we have continued over the years to advocate for a merit selection constitutional amendment. This year, that goal - at least with regard to appellate judgeships - may finally be within our grasp.
In addition to strong support for the merit selection concept throughout the organized bar, the public increasingly is calling for reform. Further, both Governor Casey and Attorney General Preate have called for a change to a merit selection system.
Presently pending before the Senate is Senate Bill 340, for which Senator Michael Bortner of York is the prime sponsor. Pending before the House is House Bill 2, for which Representative Dwight Evans of Philadelphia is the prime sponsor. These identical measures have garnered significant bipartisan support. They provide for merit selection of Supreme Court justices, as well as Superior Court and Commonwealth Court judges. Moreover, these bills are consistent with long-standing positions of the Philadelphia Bar Association in support of merit selection.
The Philadelphia Bar Association also supports merit selection of trial court judges in Philadelphia, and would accordingly support a proposed merit selection amendment which provides a "local option" for cities of the first class. All of the reasons weighing in favor of merit selection of appellate judges apply equally in a city as large as Philadelphia.
Opponents of merit selection frequently point to the federal system of judicial selection as an example of a merit selection system, and argue that we do not need that kind of system. Certainly the federal system can be justly criticized as highly political and the federal judicial selection process often may have little to do with true merit. But the proposals we support provide for true merit selection, rather than the political appointment of judges which often occurs under the federal system. The federal system of judicial selection is not a true merit selection system.
Unlike the federal system, the Bortner/Evans proposal provides that candidates for judicial appointment be screened carefully by a Judicial Nominating Commission. Under both measures, the Nominating Commission will be appointed by the Governor and 8 of its 12 members will be selected from a list of individuals submitted by the President Pro Tempore of the Senate, the House Speaker, and the Senate and House Minority Leaders. Of the 12, half will be lawyers and half will be laypersons. No more than half will be from the same political party.
Significantly, those submitting names to the Governor for selection to the Nominating Commission shall, under the proposed constitutional amendments, take into account that the Commission should include both men and women, members of the labor, business, and civic communities, and members who are from racially and ethnically diverse backgrounds who also reflect the geographical diversity of the Commonwealth. In making appointments to the Nominating Commission, the Governor shall, under the proposed constitutional amendments, ensure that its ultimate composition is similarly diverse and representative.
Upon the creation of a vacancy on the Supreme, Superior or Commonwealth Courts, the Nominating Commission will advertise the vacancy and solicit applications. It will then select five persons of demonstrated competence, judgment and integrity to submit to the Governor for consideration, first taking into account the applicants' qualifications and then again considering the goal that each appellate bench should include both men and women, and judges and justices from racially and ethnically diverse backgrounds, and who reflect the Commonwealth's geographic diversity as well.
Many people have expressed concern that an ideological litmus test has been applied under the federal selection system from time to time. Unlike the federal system, the merit selection proposals before you do not readily allow for a litmus test on any particular issue as a prerequisite to recommendation by the Nominating Commission.
From the five names forwarded to the Governor for each vacancy, one will be nominated by the Governor to fill the vacancy. The Senate has the final word, however, as the Governor's nominee must then be confirmed by a majority vote of the Senate. After being elevated to the bench in this way, a justice or judge may be retained for an additional term or removed from the bench by a retention vote of the people.
There are those who are concerned that, under a merit selection system, the people will lose their voice in the selection process. It is true that citizens will no longer vote directly for candidates for our appellate courts under the Bortner/Evans proposal.
However, the Nominating Commission will be comprised of a group of people who reflect the diverse perspectives of the citizens of Pennsylvania. Both the Governor and the Senate will certainly be as responsive to public opinion on judicial candidates as they are on legislative issues. And ultimately the public will have the last word - after seeing how any particular judge performs, the voters have the chance either to retain or remove that judge.
There has been some question raised about whether voter approval of the proposed judicial discipline constitutional amendment would preclude the submission of a merit selection constitutional amendment within a five year period under Article XI of the Pennsylvania Constitution. I have read the relevant constitutional provision as well as a series of cases interpreting that provision.
I also asked Dean Robert J. Reinstein, the distinguished Dean of Temple University Law School, to review independently the applicable law. His conclusion is consistent with my own. After reviewing the Pennsylvania Constitution and the applicable case law, Dean Reinstein concluded that submission to the electorate of an amendment to our constitution relating to the method of disciplining judges does not, under Article XI, §1, prohibit the submission within a five year period to the electorate of a constitutional amendment concerning the method of selecting judges. Dean Reinstein further concluded that a broad interpretation of Article XI, §1 would be unwarranted and "would create an artificial restraint on the people's fundamental right to govern themselves." A copy of Dean Reinstein's opinion letter is attached to the copies of my written testimony for your consideration.
Other critics fear that "merit selection" is a scheme propounded by the "old boys network" to keep women and minority lawyers off the bench. It is that fear in particular which causes some to support appellate merit selection but to oppose merit selection with a local option. I understand that fear and its genesis very well. To the extent there is any validity to this fear, data have shown it does not apply to merit selection on the appellate level.
If passed, this amendment will make Pennsylvania a trailblazer in prescribing guidelines which would ensure that those who recruit, evaluate, and appoint members of the judiciary -- as well as prospective members of the judiciary itself -- fairly reflect the ethnic, racial and gender diversity of the state. No other state which has adopted merit selection has gone to such extraordinary lengths to guarantee diversity. We applaud the drafters of these proposed amendments for including these guidelines and believe they are necessary and appropriate.
Notably, minority and women jurists have had better success in states which have adopted merit selection. This is true even though none of these states has the stringent diversity provisions of the Bortner/Evans proposal.
According to statistics compiled by the American Judicature Society in July, 1991, 17 of the 50 (34%) African-American jurists serving on state courts of last resort and intermediate appellate courts were initially chosen by merit selection (appointment from a list submitted by a judicial nominating commission) as compared to 9 (18%) who first reached the bench through partisan elections. The remaining African-American judges were initially chosen by either gubernatorial or legislative appointment without a nominating commission -- 17 (34%) -- or through non-partisan elections -- 7 (14%).
For women jurists, 45 of the 131 (34.4%) serving on state courts of last resort and intermediate appellate courts were initially chosen by merit selection as compared to 33 (25%) who first reached the bench through partisan elections. The remaining women judges were initially chosen through either gubernatorial or legislative appointment without a nominating commission -- 41 (31%) -- or through non-partisan elections -- 12 (9.2%).
In other words, appointment selection systems have resulted in more minority and women judges serving on appellate courts than have elections.
Diversifying our appellate bench is critical. Former Chief Judge of the United States Court of Appeals for the Third Circuit A. Leon Higgenbotham, Jr. put it well when he wrote in a recent Philadelphia Daily News article:
Pluralism, more often than not, creates a milieu in which the judiciary, the litigants -- indeed, our democratic system -- benefit from the experience of individuals whose backgrounds reflect the breadth of the American experience.
Pluralism does not mean that only a judge of the same race as a litigant will be able to adjudicate the case fairly. Rather, by creating a pluralistic court we make sure judges will reflect a broad perspective.
Although Judge Higgenbotham was referring to the importance of pluralism on the federal bench, his words are equally applicable to Pennsylvania's appellate bench where only 3 of the 31 current jurists are African-American and only 5 are women. Other racial minorities are not represented.
In conclusion, the Philadelphia Bar Association whole-heartedly endorses merit selection, even without provision for local option. As Governor Casey stated in his address to the General Assembly earlier this year, "Our judges should be selected because of what they are and what they know, instead of where they are and who they know." If you have any questions I can answer now, I'd be happy to address them. I am grateful for your attention today and we look forward to working together with you in the future on this very important issue.