Skip to content
Link copied to clipboard

Commentary: Eakin resignation creates chance to test merit selection

By Rebecca Love Kourlis In the wake of Justice Michael Eakin's resignation from the Pennsylvania Supreme Court, Gov. Wolf will need to appoint a successor to fill the vacancy. I would like to suggest that he has an ideal opportunity to fulfill that responsibility in a way designed to restore public confidence in the judicial branch.

By Rebecca Love Kourlis

In the wake of Justice Michael Eakin's resignation from the Pennsylvania Supreme Court, Gov. Wolf will need to appoint a successor to fill the vacancy. I would like to suggest that he has an ideal opportunity to fulfill that responsibility in a way designed to restore public confidence in the judicial branch.

Pennsylvania elects its judges and justices. However, Pennsylvania lawmakers are currently considering a constitutional amendment that would replace contested elections of appellate judges with commission-based gubernatorial appointment. The process would make use of a front-end nominating commission that would vet applicants and provide qualified names to the governor.

Wolf could act now to pilot that process by appointing a nominating commission to help him fill the Eakin vacancy.

Vacancy nominating commissions invite candidates to apply for open judgeships, screen and interview the applicants, and ultimately send the governor a short list of those best qualified to appoint.

The use of a balanced nominating commission is a key pillar of the O'Connor Judicial Selection Plan, a method of selecting judges that both preserves impartiality and provides a measure of accountability, advocated by retired U.S. Supreme Court Justice Sandra Day O'Connor and the Institute for the Advancement of the American Legal System, the organization I lead. The plan includes a nominating commission, appointment by the governor, judicial performance evaluation, and retention elections.

Judicial selection is a very important process. For the court to maintain its legitimacy as a nonideological, apolitical branch of government, the public must be convinced that the process that puts judges on the bench is itself apolitical and balanced.

If the process is seen as cronyism in action, or political court-packing, the public's trust diminishes. Ultimately, what we all want is judges who are fair, objective, and appropriately accountable.

The O'Connor plan goes a long ways toward achieving that outcome in the states where it is in place. This is why, for example, a recent report by the Committee for Economic Development called for states to replace judicial elections with elements of the O'Connor plan.

And it all begins with a nominating commission - which Wolf could create by executive order.

While following this course of action would admittedly be trailblazing for Pennsylvania, it is in no way unprecedented. Currently, governors in eight of the 22 states that choose supreme court justices in contested elections use a judicial nominating commission to advise and assist them in filling vacancies that arise between elections. In addition, in five merit selection states, governors have established judicial nominating commissions by executive order.

Pennsylvania's judiciary has faced some tough times in recent years, with record-breaking spending in contested judicial elections and a series of scandals involving state judges. A step toward turning public perception around, and repositioning the courts as a trusted and trustworthy institution, would be a selection process that prioritizes judges' impartiality, integrity, and experience. Wolf can lead the way, and we urge him to consider doing just that.

Former Colorado Supreme Court Justice Rebecca Love Kourlis is the executive director of the Institute for the Advancement of the American Legal System (iaals.du.edu).