Pennsylvania Is One Of Few States That Has Partisan Judicial Elections

May 5, 2017

When voters in Allegheny County go to the poles May 16, they will see the names of at least 14 candidates hoping to become a judge.

While it is often difficult for parties to find candidates to run for other offices, it is virtually never a problem to fill the slate with lawyers looking to earn a seat on the bench.

So why is that?

“Let me just say this, looking back on it, it’s probably one of the greatest jobs you can have in this country,” retired Common Pleas Judge Robert Gallo, 80, said. “It’s an honor, it’s a privilege because you are judging your contemporaries and it’s a great responsibility when you do it.”

But it’s harder for him to answer a different question: is the system used in Pennsylvania the best system?

“Well, I don’t know,” Gallo said. “What’s the alternative?”

A sign reads, "Quiet, court in session," outside of a courtroom at the Allegheny County Courthouse in downtown Pittsburgh.
Credit Mark Nootbaar / 90.5 WESA

    

How Pennsylvania does it

At both the trial and appellate level in Pennsylvania, lawyers run for a 10-year term as judge in partisan races, which means they identify as being a Republican, Democrat or third party.

When their first term is up, they shed that party designation and run for retention, which means voters just say yes or no to their candidacy— there is no direct opponent.

That’s different from many other states, where the governor or a special commission appoints judges. Some states mix appointments and elections, some use non-partisan elections.

University of Pittsburgh associate professor of political science Chris Bonneau said there is no best way, but when assessing a system, one should first consider accountability versus independence.

“We don’t have life terms [in most states], so there is some accountability,” he said. “Whether the accountability is by reappointment, by the executive or by reelection by the electorate. So the question is ‘accountable to whom?’ Do we want [judges] to be accountable to the public or do we think they should be accountable to the political elites?”

Bonneau said another consideration is transparency.

“Given that politics infiltrates the process, would we rather have this out front, like an elected system where judges can campaign and can tell the voters what their judicial philosophy is and the voters can make a choice?  Or would we rather have them behind closed doors where an appointing authority or a nominating commission makes that decision for the voters?” Bonneau asked.

How to cast an educated vote

People walk by the Pennsylvania Judicial Center on Tuesday, Dec. 8, 2015 at the state Capitol in Harrisburg, Pa.
Credit Matt Rourke / AP

So, how can voters go about choosing a judge? Retired Court of Common Pleas Judge Stanton Wettick said it’s helpful to find someone in the know.  

“You probably know some lawyers that would have a somewhat good idea,” he said. “That could be the lawyer who lives down the street or one who goes to your church.”

But if that’s not an option, the Allegheny County Bar Association judiciary committee interviews each candidate in Allegheny County and publishes its recommendations.

“The candidate has a lengthy application to fill out and the interviews are very in depth,” Bar Association President Melaine Shannon Rothey said. “The people who quite frankly know whether or not this person is going to be qualified to sit on the bench are the members of our judiciary committee.”

Each candidate is given the rating of highly recommended, recommended, not qualified at this time or unqualified.

In most Pennsylvania counties, there either is no bar association or they are so small they are unable to issue such ratings. Wettick said that does not undermine the process.

He said in the smaller counties the voters “actually know the people to a certain extent, I don’t know if they know they are a good lawyer though, but I think there would be some sense of who’s thought to be a good lawyer.”

For statewide races, the Pennsylvania Bar Association issues similar recommendations. But to some that seems a bit like the fox being asked to guard the hen house.

“I will tell you that it used to be a good-old-boy’s network,” Rothey said. “Having been a lawyer for over 30 years, I don’t think it is quite as much anymore.”

However, Bonneau said studies have found that when controlling for all other factors, minorities and women tend to get lower ratings from bar associations nationwide.

Retention rates

Bonneau said he also finds that once someone becomes a judge in Pennsylvania, they are virtually always approved for retention.

“Even when they’re under investigation, or for corruption, what have you,” Bonneau said.

The lone exception in recent history is Russell Nigro, who was not retained for his seat on the Pennsylvania state Supreme Court in 2005 when voters were angry over pay raises for all three branches of the state government.

Gallo said the retention race is not just a way to make sure judges get to stay until they are forced to retire at the age of 75, it’s a way to ensure they make the hard choices while on the bench.

“You make a thousand rulings and if you make one bad ruling… your opponent will bring that one case up, even though you did a thousand good ones,” Gallo said. “So I think standing for retention is the best way to go once you are elected.”

Bonneau said surveys find voters in states where judges are elected think it adds legitimacy to the position, even when they admit they are unfamiliar with the candidates.

On the other hand, when he speaks in states where judges are appointed, he said residents are appalled that the election process would sully the post.