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Opinion: Pick state court judges based on merit, not popular vote

As our state court judges come under scrutiny because of their political affiliation, the time might be right for Pennsylvania to join 43 other states which choose their appellate court justices based on a merit system rather than by direct election.

Now, if the majority of our electorate took the time to review the backgrounds of these judicial candidates or gave some serious thought to the matter, I’d say, sure, let the electorate decide, but that is nowhere near the case.

Need proof? OK, look at this list of names, members of the Pennsylvania Supreme Court: Kevin Brobson, Max Baer, Debra Todd, Christine Donohue, Kevin Dougherty, David Wecht and Sallie Updyke Mundy. Brobson and Mundy are Republicans; the other five are Democrats. In November, Brobson defeated Democrat Maria McLaughlin to fill the spot of Republican Justice Thomas Saylor, who reached the mandatory retirement age of 75.

You may have heard of a few of these justices. Donohue, for example, is a native of Lansford, so she might have gotten your attention somewhere along the way. The name “Max Baer” is the same as a well-known boxer who was world heavyweight champ in the 1930s. His son, Max Baer Jr., played Jethro on “The Beverly Hillbillies,” a popular sitcom that lasted from the early 1960s until the early 1970s. Chief Justice Baer is not related to either of these Baers. By the way, 2022 will be Baer’s last year since he will reach the age of 75 in December.

For most of these, however, you probably don’t have a clue as to who they are, probably have never heard of them. Well, don’t worry, you are not alone. Few others have either. Some of you voted for them in recent elections, even though you didn’t know who they were or where they stood on issues.

Although there have not been any recent scandals involving justices, several occurred recently enough to remain in our memories. Supreme Court Justice J. Michael Eakin was suspended for sending and receiving pornographic emails. The Eakin quagmire makes a strong case that we need to select our appellate judges by merit, not through the current partisan political process, which has given us, in some cases, terrible results.

Pennsylvania’s highest court has been shaken to its core by scandal. First, in 2013, Justice Joan Orie Melvin was convicted of using court staffers to do her electioneering. Common Pleas Judge Lester Nauhaus sentenced Melvin to three years of house arrest and two years of probation. He also ordered Melvin to write apology letters to every judge in the state on a picture of herself in handcuffs. An appeals court upheld the letter-writing but ruled it didn’t have to be on the photograph. Melvin sent a three-paragraph letter, personally addressed to each judge. She resigned her position in disgrace and was disbarred in late 2014, meaning she is unlikely to practice her chosen profession ever again.

Then, in 2015, Justice Seamus McCaffery resigned rather than go through the legal process that was sure to come after it was disclosed that he was corresponding in pornographic emails while on the job.

Few of us choose state appellate court candidates for legitimate reasons, nor is it likely that we know how they stand on important issues. There’s a good reason why we don’t know, too, because judicial canons prevent these candidates from disclosing their positions on key issues, because these issues might come before them if they are elected. This means their previously stated views could be seen as prejudicial and could compromise a case before the courts.

So, how do we choose which candidate to vote for? It might be because of the candidate’s political party. All three Democrats on the ticket in 2017 won election, besting the three Republican candidates. Many believed that voters punished the Republicans since Melvin, McCaffery and Eakin are all Republicans.

But, as indicated, the Republican candidate, Brobson, gave the GOP hope in a state with a decided Democratic voter registration lead, secured victory to keep the political balance at on the state Supreme Court at 5-2 in favor of the Democrats.

All judges on the three appellate courts serve initial 10-year terms. If they want to continue, they seek what is called “retention” in which voters on Election Day cast a yes-or-no ballot. Nearly 98% of these types of votes have been “yes.” If the vote turns out to be “no,” a regular type election is held. The incumbent is allowed to run in this election.

When seeing this list of unrecognizable names before us when we pull the curtain in the voting booth or see it staring at us on our mail-in ballot, voters are left to pick on the basis of party, gender, geography, ethnicity or whether someone has a “cool”- or a “not-so-cool”- sounding name. I wonder, for example, how many voted for Max Baer because he had a famous name.

Three former Pennsylvania governors - Democrat Ed Rendell and Republicans Tom Ridge and Mark Schweiker, have urged state legislators to enact a bill that would end the partisan election of judges in all three appeals courts - Supreme, Superior and Commonwealth.

I couldn’t agree more.

By Bruce Frassinelli | tneditor@tnonline.com

The foregoing opinions do not necessarily reflect the views of the Editorial Board or Times News LLC.