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Governor Rendell’s second slate of nominees to fill interim vacancies on the appellate courts has been confirmed by the state Senate. Philadelphia Court of Common Pleas Judge Jane Cutler Greenspan will serve on the Supreme Court; McKean County President Judge John Cleland and Northampton County President Judge Robert Freedberg will serve on the Superior Court; and Philadelphia lawyer Johnny Butler will serve on the Commonwealth Court. The judges will serve until January 2010, when new judges elected in the fall 2009 elections will be sworn in. The newly confirmed judges each have pledged not to run for full terms in the 2009 elections.

Filling these vacancies was a long and politically contentious process. Although the new judges, like the previous nominees, are highly regarded, the process by which they came to the bench was not Merit Selection. There are two major differences between the current interim appointment process and Merit Selection.

First, the current process does not use an independent nominating commission to evaluate candidates and recommend the most qualified to the Governor. Instead, the Governor, working with legislative leaders, devises a list of candidates.

Second, the current process does not involve a role for the public. Under Merit Selection, after the judge serves for a brief initial term, the public votes in a retention election on whether or not the judge should continue in office. By contrast, in the current interim appointment process, the judges serve only for a short time and pledge not to seek a full term. This is the political deal that must be made to secure confirmation, and it deprives the public of an opportunity to evaluate the judges and of longer service by good judges.

We are pleased that the long vacant appellate court seats will be filled, but we regret that we are still using a political process that is part and parcel of the electoral system to do so.

Voices Of Merit is an occasional series featuring insights from places where Merit Selection is already at work.

In Maricopa County, Arizona, Superior Court judges have been chosen by Merit Selection since 1974, after a voter-ratified constitutional change. The court publishes a brochure with the straightforward title Merit Selection Of Judges. It explains how the switch to Merit Selection has helped to create a court of skilled, diverse and fair-minded judges, “free from political debts that supporters may expect to be paid.” These are exactly the goals we have in mind for Pennsylvania’s appellate courts.

The campaign for Merit Selection is an effort to bring to Pennsylvania a better process for selecting appellate court judges. It is not about the judges currently serving on the appellate courts.

Pennsylvania has many qualified, skilled, experienced and fair appellate judges. But they reached the bench despite the electoral process, not because of it. We’d get a lot more good judges under Merit Selection, which is designed to bring such people to the bench.

Sometimes the electoral process produces good, capable judges, and sometimes it produces the best fundraisers and campaigners, who may not be the best judges. Pennsylvania deserves a system that is designed to get the best judges on the appellate courts.

Elections are the best way to select presidents, governors, mayors, senators, and representatives — public officials who represent specific constituencies and advocate for identified policies. Judges have a different role — they are sworn to evenhandedly apply the law, without regard to personal preference, political pressure, popular will, or promises made to voters or campaign donors. Pennsylvania needs a system of selecting judges that respects this difference.

This campaign is not about the judges currently sitting on our appellate courts; it’s about the process that brought them there. Merit Selection is a better way.

When there’s an interim or midterm vacancy on any court in Pennsylvania, it is filled by the Governor making a nomination that is subject to Senate confirmation. Usually for appellate seats, the nominee agrees not to run in the next judicial election for a full term on the court and, therefore, sits on the bench for a short period of time.

This is because the interim appointment process is actually part of the electoral system and is designed to keep either political party from gaining too great an advantage in the next election. Thus, good candidates must promise not to run in the future, lest they get an unfair advantage of running while already a member of an appellate court.

There currently are four vacancies on the appellate courts — 2 on the Supreme Court and one each on the Superior and Commonwealth Courts. This week, the Governor’s nominees for those vacancies were all rejected by the Senate.

According to news reports, the Governor and Senate leaders met to discuss possible candidates for the vacancies, but the ultimate slate of nominees did not include individuals favored by the Senate leadership. As a result, after several months, the Senate voted all four nominees down, without even holding hearings.

So, we’re still left with four vacancies on the appellate courts, and the vacancy on the Supreme Court has the added problem of leaving a six member court that could result in 3-3 decisions. By the time the politicians meet again, new nominations are made, hearings are held and votes are taken, the new judges might have less than a year to serve.

If we had a Merit Selection system in place, these vacancies would be filled through the process involving screening by an independent citizens nominating commission, nomination by the Governor, and confirmation by the Senate. After four years on the bench, the judges would stand before the public in a retention election. Good judges would have the opportunity to stay on the bench for a full ten-year term. Judges the public is dissatisfied with would be removed, and the process would begin again to fill the vacancies.

Merit Selection is designed to get the most qualified judges on the bench in an expedient manner. It’s not designed to position political parties for upcoming elections. That’s why Merit Selection works.

Yesterday’s Metro featured an article about the effort to bring Merit Selection to Pennsylvania. While the article identified some of the problems of judicial elections and some of the benefits of Merit Selection, it mistakenly implied that the current Merit Selection legislation would affect all courts in Pennsylvania. The fact is, we are working for Merit Selection of the three statewide appellate courts only.

There are three appellate courts in Pennsylvania — the Supreme, Superior and Commonwealth Courts. There are 31 appellate judges, out of a total of 1,048 judges in Pennsylvania.

The problems with judicial elections — the lack of emphasis on candidates’ qualifications, the huge sums of money raised from parties likely to appear before the judges in the future, and the lack of opportunities for qualified candidates of all backgrounds — are more pronounced at the level of the appellate courts.

As a result, the current reform effort is focused on changing the way we select this part of the judiciary. The trial courts, including the Courts of Common Pleas, Municipal Courts, Magisterial District Judge Courts, and Traffic Courts, would not be affected.

The current Merit Selection proposal applies only to the three statewide appellate courts — the Supreme Court, the Superior Court and the Commonwealth Court. Together, there are 31 appellate judges, out of a total of 1,048 judges in Pennsylvania. That’s it — we’re talking about changing the way we pick 31 judges.

We’re talking about the 31 judges who run in statewide elections, spending hundreds of thousands of dollars (and millions for the Supreme Court) on their campaigns. Elections for the local courts so far have been less expensive (although the costs for these are also steadily rising) than elections for the appellate courts and have resulted in more diverse judiciaries. In short, the problems inherent in electing judges are more evident at the level of the statewide appellate courts.

In addition, appellate judges have different jobs than the judges in our local trial courts (common pleas courts, magisterial district judge courts, municipal and traffic courts). Where the lower courts really are “people’s courts,” that hold trials on traffic accident cases, employment disputes, custody cases, landlord-tenant problems and personal injury claims, the appellate courts address questions about how the law was applied in those cases.

The appellate courts don’t hold trials and aren’t the places where people come to tell their side of the story. Instead, the appellate courts are where the lawyers make legal arguments about possible errors in the trial, including whether evidence was improperly presented, or the need to make changes in the applicable law. It makes sense to consider using different processes to select these different kinds of judges.

Changing the way we select appellate judges is a serious matter for the people of Pennsylvania to consider. But it’s not a wholesale change of the way we pick judges in the state. After all, the change would only affect 31 judges — less than 3 percent of the judges in Pennsylvania.