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Should Pennsylvania consider appointing state judges?

Posted by Robert Speel on 05/13 at 08:37 AM

Pennsylvania voters offered a chance to vote for candidates they know nothing about for an office they know nothing about.

On Tuesday, May 19, Pennsylvania voters statewide will be confronted with a ballot choice between Linda Judson, Barbara Ernsberger, Jimmy Lynn, Stephen Pollock, MIchael Sherman, Daniel Bricmont, Al Frioni, Patricia McCullough, and Kevin Brobson.  The first six are Democrats, and the last three are Republicans.  Voters within each party will get to choose two of those candidates, even though 99% of voters know virtually nothing about any of the candidates, and probably over 90% of voters have never heard of any of those candidates the week before the primary election.

For what office are the nine candidates running? Pennsylvania Commonwealth Court.  In addition, Democratic voters statewide will get to choose among six candidates for three positions on Pennsylvania Superior Court. (Republicans will only get three choices for the three positions).  One Democrat and three Republicans are also running for a lone open seat on the Pennsylvania Supreme Court. While most voters have some general idea what the function of the state Supreme Court is, very few non-attorneys could answer a question about the difference between Superior Court and Commonwealth Court.

So how do voters choose among candidates they know nothing about for an office they know nothing about?  In a primary election, even party affiliation provides no help since voters are choosing within their own party.

The ballot helpfully provides the county of residence of each candidate, so that voters in the Philadelphia area can vote for candidates from their region, and so that voters in the rest of the state can avoid voting for candidates from the Philadelphia area (a traditional voter cue in low-information Pennsylvania elections).  Some voters will make choices based on gender or the ethnicity of the candidate name.  While voting based on county of residence, gender, or ethnicity doesn’t seem to be the best way of selecting state judges, most Pennsylvanians are offered few other options.

In 2002 in a case out of Minnesota, the US Supreme Court ruled that a state law that forbids judicial candidates from campaigning on specific issues violates freedom of speech and also makes judicial elections pointless. Though retired Justice Sandra Day O’Connor, who formed part of the 5-4 majority in the case, later said that she regretted her decision, the US Supreme Court had a point. Why hold elections when candidates are not allowed to tell you their views on issues?

Yet Pennsylvania state law still forbids judicial candidates from campaigning on specific issues. While most of the judicial candidates are aware of the unconstitutionality of that part of state law, by tradition most state candidates still follow it. So instead we get nice photos of candidate families, we get a resume of what colleges and law schools each candidate attended, and we learn that candidates support law and order - apparently to differentiate themselves from the candidates who support anarchy in the streets.

The only other cue that voters get about the candidates are from which ones can run the most campaign commercials due to raising the most money.  Judicial candidates tend to raise money from business groups and trial attorneys, all of whom have interests in future court decisions.  So in Pennsylvania, we are told that candidates should not campaign on issues on which they might have to rule in the future, but those same candidates can accept contributions from groups and individuals with interests in future rulings.

Pennsylvania voters then have the ability to choose among candidates based on county of residence, gender, ethnicity, name recognition from commercials, and the pleasing looks of candidate families—for an office the voters know nothing about.  Is this really democracy, or is time to consider the appointment of state judges?

{name} Author: Robert Speel
Bio: Associate Professor of Political Science
Penn State Erie, The Behrend College


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