A bad reason for rejecting judges

David R. Fine

is a lawyer in Harrisburg

Pennsylvanians deserve better voting advice than they are receiving from two vocal advocacy groups.

PA CleanSweep and Taxpayers and Ratepayers United, two groups formed to protest the 2005 legislative and judicial pay raise, are urging voters to vote "no" on each and every Pennsylvania judge up for retention on the November ballot. (After their initial election, Pennsylvania judges must seek retention every 10 years.)

The groups base their recommendation solely on the fact that the judges did not reject the pay increase. Not that they made poor legal decisions. Not that they have misguided judicial philosophies. Not that they have shown bias or taken bribes.

Indeed, it's a fair bet that the folks who called for these judges' ouster couldn't tell you much about their actual work. For groups that hold themselves out as favoring better government, their position is self-defeating, wrongheaded and potentially catastrophic.

First, most (if not all) of the judges had no role in the General Assembly's decision to enact the pay increase, and they have no meaningful choice about accepting it.

Superior Court Judge Joan Orie Melvin told the commonwealth she didn't want the pay raise, and the state responded that it was required to pay her. She sued; a Commonwealth Court judge ruled against her, and the issue is now before the Pennsylvania Supreme Court. Simply put, the judges couldn't reject the pay increase even if they wanted to do so.

Second, voters should choose (or retain) judges based on their abilities on the bench, not their action - or, in this case, inaction - in response to a single political event. Judges make decisions on a wide array of issues. In criminal cases, they decide who will be jailed and for how long, and sometimes who will be executed. In civil cases, they decide who will prevail when someone alleges he suffered an injury at the hands of another, who will have custody of children when parents divorce, who will win when parties disagree about their contract rights, and when the government has overstepped its authority.

In deciding which judges should keep their jobs, we should focus on how they resolve such important questions. Do they do so with open minds; do they do so objectively; do they study the law and apply it fairly? To focus instead on a single issue such as the pay raise would be to employ the most arbitrary sort of tunnel vision.

Third, there are dozens of judges up for retention this year. If the misguided effort to oust all of them were to succeed, what would happen? Gov. Rendell would appoint people to fill their seats until new elections could be held. There is no small irony in the idea that groups that demand public involvement in government would try to create a scenario in which elected judges would be replaced by appointed judges. Many people believe Pennsylvania judges should be appointed rather than elected, and there are some good reasons to support such a change, but the pay raise isn't among them.

Beyond that, it would take months (if not longer) for the governor to make his nominations and for the Senate to confirm them. In that time, the work of Pennsylvania's courts would almost certainly slow significantly, and that would harm the citizens who have cases before those courts. Finally, unless the Supreme Court decides Orie Melvin's case in her favor, those new judges would have no choice but to accept the increased pay the advocates so decry.

The better advice for Pennsylvania voters is to scrutinize the work these judges have done. Read about the decisions they have made. Talk with lawyers and litigants who have appeared before them. Read what professional groups such as the Pennsylvania Bar Association have to say about them. Study their campaign Web sites.

If they've done well at their work, keep them. If they haven't, don't.

Do not follow the misguided recommendation of those who would ask you to ignore what really matters in order to make an arbitrary decision with real consequences for the people of Pennsylvania.

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