Demystifying the Judicial Branch


With five statewide appellate court seats up for election – including three on the Supreme Court – an unusual political spotlight is focused this year on the judicial branch of government.  Partisan control of the Supreme Court, yes there is such a thing, hangs in the balance as a wide range of future policy issues and ultimately congressional redistricting will end up before the justices elected this year.
This also presents a unique opportunity to pierce the mystique spun by the legal profession that the courts are somehow special, above the realm of politics and political maneuvering and of higher stature than the other two – supposedly co-equal – branches of government.  The courts are not, and should not, be considered special.  Different, indeed, as each branch of government has its own distinct and unique role.  But special it is not.
Just as labor unions exert out-sized influence over the legislature, the legal profession via the Bar Association holds sway over the selection of judges, particularly at the state level.  Through a secretive vetting process the Bar Association rates the candidates with an eye toward influencing the party endorsement and election processes.
Given the fact that lawyers are but one sub-set of the electorate with a stake in the judiciary, the degree of influence the Bar’s recommendations have had in the past jeopardizes the fairness of the courts.  The carefully crafted illusion is that Bar Association recommendations are somehow the bestowing of superior wisdom on a clueless electorate.  In fact, the Bar ratings are just the views of yet another special interest group.  An important special interest group, yes, but an interest group nonetheless.
Voters should approach the Bar Association’s ratings in that light.  Further, their ratings should be viewed with all the suspicion of a Brian Williams war story.  Members of the evaluation commission are selected in the absence of any public input, their deliberations are secret and the factors weighing on their recommendations are kept from public view.  This total lack of transparency is the exact opposite of the endorsement processes of the political parties where those doing the endorsement are themselves elected by voters, the endorsement meetings are open to the media, and the votes of state committee members recorded for all to see.
A controversy has arisen over the Bar’s ratings this year because they are refusing to recommend Commonwealth Court Judge Ann Covey for a seat on the state Supreme Court.  Judge Covey was endorsed by the Republican State Committee pitting the party against the Bar.  Covey, refusing to play by the Bar Association’s rules, has publicly criticized the recommendation process and questioned its fairness.
Further eroding the Bar Association’s credibility is the fact that the current Chief Justice of the Pennsylvania Supreme Court, Justice Tom Saylor, was not recommended by the group in his first run for a judicial post.  Given the fact he has now become the top jurist in Penn’s Woods, the Bar is left with considerable egg on its face.
The current mess created by the Bar Association also adds one more argument to those who oppose the merit selection of judges.  If the legal community conducts its recommendation process in secret, what kind of back room deals might we expect from merit selection?  Further, the formerly staid recommendation process has now become embroiled in controversy as a result of its own failings.
It is time for voters to take charge.  The state Supreme Court races will top the ballot this year meaning there is no presidential, senatorial or gubernatorial race to steal the spotlight.  The state’s news media need to step up and cover the court races like they would other statewide races because the positions merit that level of debate and scrutiny.  And voters need to educate themselves, both in the primary and general elections, about the candidates so they can make an informed decision when going to the polls.
This is an opportunity for We the People to have an impact on a vitally important and co-equal branch of state government.  It is time to push aside the mystique of the judiciary.  We must take this election with the same degree of seriousness we do in electing our governor and our legislators.
Because in the end judges matter.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is lhenry@lincolninstitute.org.)

 

Permission to reprint is granted provided author and affiliation are cited.

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