'Merit' picks have flaws too

By Dan Pero

The conviction of Supreme Court Justice Joan Orie Melvin on public corruption charges has unleashed a torrent of hand-wringing about the need to end democratic judicial elections. Lynn Marks of Pennsylvanians for Modern Courts speaks for this view, arguing that Melvin's problems "couldn't have happened if judges weren't elected in the first place."

It would be nice to think that ending elections would magically make our public servants more virtuous, but there doesn't appear to be any real evidence to support this case.

In Florida a few years back, Judge Thomas E. Stringer Sr. resigned from office after he was accused of helping a stripper hide assets from her creditors. Stringer later pleaded guilty to bank fraud.

Also in Florida, in 2011, District Court Judge Paul Hawkes - known as the "Taj Mahal judge" - resigned from office amid questions about the construction of a $50 million marble-and-mahogany-laden new courthouse he helped oversee. According to news reports, Hawkes was accused of destroying public records related to the court's budget and pushing furniture vendors to pay for a trip for Hawkes and two relatives.

Even federal judges, who undergo intense scrutiny in appointment, including a rigorous review process by the American Bar Association, are not immune to scandal.

Judge Thomas Porteous of the Eastern District of Louisiana was impeached by the U.S. House of Representatives and convicted by the U.S. Senate following evidence he had taken bribes from local attorneys and businessmen with cases before his court and later lied about his actions to the FBI.

Each of these judges was appointed, rather than elected, some under the so-called merit selection system Marks and other anti-election proponents support for Pennsylvania. Marks says this new system is needed because judges seeking election often receive campaign contributions from lawyers and special-interest groups who may appear in the courtroom.

Yet if the problem is too much influence by lawyers, it's hard to see how merit selection will solve it.

Merit-selection proposals in Pennsylvania call for the creation of a 15-member Appellate Nominating Commission, with seven "public" members and four each appointed by the governor and the General Assembly. The experience in other states suggests these nominating commissions quickly become dominated by legal special-interest groups.

A few years back in Missouri, the birthplace of merit selection, the former president of the Missouri Association of Trial Lawyers was nominated to fill a vacancy on the state Supreme Court - a nomination made possible by a merit-selection commission that included both a former and current board member of the Missouri Association of Trial Lawyers, plus the wife of one of the state's most prominent trial lawyers. As a Wall Street Journal editorial put it, rather than producing judges based on merit, Missouri's selection process has "handed disproportionate power to trial lawyers and state bar associations," resulting in a system that "elevates nominating commission cronies."

It's hard to see how a merit-selection commission dominated by lawyers meeting in the proverbial smoke-filled room addresses the problem of too much potential special-interest influence.

The point here is that every system for selecting judges - democratic elections, appointment systems, merit selection - will produce both good and bad judges. Public corruption will be around as long as there are public servants. The key is to keep the judicial selection process open, transparent, and accountable. Merit selection accomplishes none of these goals.