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Late last week, Governor Rendell nominated a new slate to fill interim vacancies on Pennsylvania’s appellate courts. From early reports, it seems likely that the new slate — Philadelphia Common Pleas Court Judge Jane Cutler Greenspan for the Supreme Court, Northampton County President Judge Robert A. Freedberg and McKean County President Judge John M. Cleland for Superior Court, and Philadelphia lawyer Johnny J. Butler for Comonwealth Court — will be confirmed in the near future. This follows months of political wrangling and the Senate’s rejection of the Governor’s first slate of nominees.

PMC/PMCAction Executive Director Lynn Marks warns: “This interim appointment process should not be confused with what is known as a merit selection system just because both require nomination by the Governor and Senate confirmation. . . . They are both very different and the jockeying we have seen for the last few months is another example of why we should change the way we appoint appellate judges.”

Now that the Pennsylvania Senate has officially rejected Governor Rendell’s nominations to fill four vacant appellate judgeships, calls are coming for increased diversity among the judges on the appellate bench. Senate Republicans cited lack of diversity in the nominees as one reason why they rejected the slate. The Black Legislative Caucus is calling on the Governor to nominate Black and Latino candidates to fill the seats.

Supporters of Merit Selection are keenly aware of the lack of diversity on the appellate courts in Pennsylvania. Of 31 judges on the three statewide courts, only two are judges of color (one on Superior Court and one on Commonwealth Court). No minorities sit on the Supreme Court. Only one African American has ever been elected to the Supreme Court, and there have been no justices or appellate judges of Hispanic or Asian descent.

In addition, historically most appellate judges have come from the Philadelphia and Pittsburgh areas. This stems in large part from the difficulty in running a statewide campaign and the need for broad support from big population centers. Although county of residence is essentially irrelevant to one’s qualifications to serve as an appellate judge, it has been an important predictor of electoral success.

A diverse judiciary is good for the state, and it’s good for justice. Pennsylvanians can feel confident that their viewpoints will be fairly considered when the judiciary includes judges who come from diverse backgrounds and different parts of the Commonwealth and who bring many different experiences to the bench. Merit Selection — which offers pathways to the appellate bench for qualified jurists from a variety of areas and backgrounds — can help Pennsylvania achieve this.

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.

In an editorial addressing Governor Rendell’s stalled interim judicial appointments, Scranton’s Times-Tribune points out that judicial elections make it difficult for qualified candidates from many areas of Pennsylvania to reach the appellate bench.

Due to simple electoral math, it is very difficult for any candidate who is not from the Philadelphia area or Allegheny County to be elected to the appellate courts. Diversification of the appellate courts is one of the reasons that the state should switch to a system of merit selection.

Diversity on the bench, including geographic, racial, ethnic, gender and professional diversity, is one of many important characteristics of a fair and impartial justice system. It’s something that’s elections have not produced on Pennsylvania’s appellate courts.

We agree with the Times-Tribune that it’s time for Pennsylvania’s legislators to “get the ball rolling on merit selection.”

In a letter to the editor published in today’s Philadelphia Inquirer, Pennsylvanians for Modern Courts and PMCA Executive Director Lynn Marks explains how Merit Selection of appellate judges differs from the interim judicial appointments currently stalled in the state Senate.

Opponents of Merit Selection like to argue that the struggle over Governor Rendell’s nominations somehow makes Merit Selection impractical or unworkable. In reality, the two systems are very different, and problems with the interim appointment process don’t undermine the value of Merit Selection.