Law Review: Scandals. a panel, but judges picked the same way

In the tangled undergrowth of Pennsylvania judicial corruption, the 1980s roofers' union scandal occupies an especially dark and disturbing place.

Eight judges were removed from the bench in 1988 after it was disclosed that union officials had handed them envelopes stuffed with cash. Some affected bewilderment that anyone would raise a fuss. Why, these weren't payoffs, they gamely protested: The envelopes with the secret coding on them, the better to avoid detection, were simply gifts reflecting the high esteem in which they were held.

Even in Pennsylvania, where there is an abundance of tolerance for public officials behaving badly, the idea that judges could be members of a roofers union rewards program without compromising judicial integrity didn't come close to passing the laugh test. One union official was heard to say on a FBI wiretap that the distinguished jurists in question were "our judges" as he discussed the importance of having them on the side of the union.

It was against that backdrop that former Gov. Bob Casey appointed a judicial-reform commission, which in turn came back with a recommendation that Pennsylvania replace its system of electing judges with an appointment process. That way, presumably, candidates would be better screened.

Fast forward 25 years, and what has been the result?

Pennsylvanians still choose their judges the old-fashioned way. Wannabe judges raise money from special interests, most alarmingly from some of the same lawyers who appear in their courtrooms. They court ward leaders and politicians, run political ads, and crisscross the state as they campaign for their seats.

It is irrefutably true that there would have been no indictment of Supreme Court Justice Joan Orie Melvin last month on campaign-finance law violations had she been appointed. Melvin, who has pleaded not guilty to the charges, is accused of using taxpayer-paid staff to campaign for the Supreme Court.

Where judicial corruption once was a game involving small envelopes containing at most $500, Pennsylvania voters, indeed the entire nation, last year were treated to the sordid spectacle of two Common Pleas court judges in Luzerne County charged with receiving kickbacks from for-profit juvenile centers they kept filled with young offenders. For their role in what has been called the worst juvenile justice scandal in the nation's history, they have been given lengthy prison sentences.

In a tale straight from a particularly grim Dickens novel, thousands of young people were sent to juvenile facilities, a disproportionate number without legal representation. The state Supreme Court had received at least one complaint early on but declined to act. It was only because of persistent litigation by the Juvenile Law Center in Philadelphia, acting on the complaint of a distraught parent, and a Justice Department criminal probe, that the cases came to light.

All of this is important to consider because the Pennsylvania House Judiciary Committee on June 5 crushed voters last best hope this year to fix Pennsylvania's broken judicial selection system. Then, the committee voted 13-12, to table a bill that would replace elections for appellate level judges with a so called "merit selection" in which an independent panel would screen candidates, passing along a handful of names to the governor.

Preserving some level of input from the political system, the nominations would then have to be confirmed by the Senate. House Judiciary Committee chairman Ron Marsico thought he had the votes going in. What turned the tide was an email from the Pennsylvania Pro Life Federation opposing the proposal and advising committee members that the federation would weigh their votes when it decided on endorsements in this year's election.

Opponents of merit selection have some valid arguments. Chief among them: an appointed and in their view unaccountable judiciary would upend the democratic process, forcing its will on voters, who would have no recourse.

But that is in effect the system already in place.

Judicial elections don't, and really can't, serve as a vehicle for judges to stake out positions lest a candidate be seen as prejudging a legal question. The elections thus don't serve the purpose of accountability because, beyond broad generalities, there's little of substance a candidate can say. Add to that the pathetically low turnout rate, 20 percent or less in some local races, and what is left is a process that accomplishes little of what it promises.

Pennsylvania has many fine judges, despite the fact that they run for office under party labels. Philadelphia's complex litigation center has been a national model for handling mass torts such as asbestos and pharmaceutical lawsuits, which pose some of the most thorny and demanding legal process issues facing the American legal system. But a convincing study by the American Judicature Society, which studies judicial selection, ethics and other matters related to the judiciary, found elected judges are prone to higher rates of ethical infractions than those who are appointed.

Simply on an anecdotal basis, the federal system has it all over Pennsylvania. Federal judges in Pennsylvania are screened by state committees who pass along their names to the sitting U.S. senators, who then send names to the White House for nomination.

It is not a perfect process. The White House nomination of federal district court Judge Legrome Davis in Philadelphia was held up for years before he was finally nominated and confirmed as county political chairmen maneuvered to get their favorites in position.

But typically, the candidates who make it through the process, like Davis, have impeccable credentials. Moreover, it is almost unthinkable that a federal judge might be implicated in something like the Luzerne County "kids for cash" scandal.

They certainly won't be indicted for election law violations.