Wednesday, June 28, 2006


The danger of so-call "merit selection" is that it leads to a system of unaccountable executive power in which the case of Bush v. Gore, where the U.S. Supreme Court stopped a recount which likely would have led to a Gore Presidency, becomes the standard judicial operating procedure.Let's be clear: "merit selection" is the equivalent of turning the management and complete control of the henhouses over to the foxes. "Merit selection" has no inherent standard other than approval of the dominant power structure. Only in rare circumstances is there any objective comparison of the qualifications of would-be judges under "merit" selection. Instead, nebulous praise is offered for the most sellable characteristics of whoever the "merit" appointee is. New Jersey, one of the states in clear contention for being the most corrupt in the nation, has long had "merit selection" for its judges."Merit selection" keeps the public out of the process. Having the public as part of the process is a safeguard. Taking the public out of the process is a regressive step backwards.To the best of my knowledge, there has not been a single study objectively comparing the quality of judges produced under "merit selection" with the quality of judges produced by popular election. The improvement in quality has always been assumed, and therefore not a fit subject of actual investigation.Recent press accounts of the efforts of Arlen Specter to secure a third Circuit nomination for Carolyn Short, a former aide of Specter's whose legal website advertised her aggressive defense of corporate leaders accused of sexual harassment before she resigned to join Specter's office, focused on the fact that Short was married to Joseph Torsella, a Democratic candidate for Congress in 2004. They could have mentioned also that her late father Robert Short was once Chairman of the Democratic National Committee.That she was married to a recent Democratic Congressional candidate disqualified Short for the 3rd Circuit according to inside sources familiar with the federal decision-making. So Specter has apparently worked out a deal whereby Short will replace Judge Pratter on the Pennsylvania district court when Pratter is confirmed for the 3rd Circuit. Short's campaign contributions to Specter and Rick Santorum were approvingly noted by the Evening Bulletin.If there were genuine concern about merit, every leader of the Bar Association in Pennsylvania would be calling press conferences to denounce this situation. In the real world, however, we see absolute silence from the legal establishment. Public opinion polls of the legal profession nationally have found the legal profession to be about 65% to 70% Democratic in party affiliation. But the federal courts are now over 85% Republcan. Republican Party affiliation and activity is key to "merit" as long as we have a Republican President, and the reverse would be true if we had a Democratic President.Strong partisan Democrats occasionally quote Harry Truman: "I always vote for the better candidate. That's the Democrat." This kind of partisanship is the essence of the federal judicial selection process. It serves as a stern warning for those who idealistically believe that "merit selection" offers a genuine improvement in quality of judges.

October 16, 2007


The fact is that the Governor is the most important official in state government. He has tremendous powers over appointments, the implementation of laws, and the granting of contracts.All a governor has to do with a merit selection panel is to make certain that it includes among its recommendations those people the governor wants to appoint. It does not really matter who else the panel recommends or who sits on the panel.Just about any governor just any time can get just about any panel to recommend the people he wants to appoint among a large of people. I know this a wild coincidence, but each governor has disproportionately found merit appointees among those who supported his gubernatorial candidacy. Unless there is some meaningful definition of merit, merit basically translates into support for the Governor demonstrated by the nominee or his key backers. This is similar to the federal definition of merit that has long prevailed, with support for the President the key criterion for the vast majority of appointments.

September 14, 2007


The essence of judicial reform is the taking away of power from the citizenry and the turning of power now in the hands of the public at large to whoever is Governor of Pennsylvania and whoever the key backers of whoever is Governor are.I have personally known Governors Milton Shapp, Dick Thornburgh, Bob Casey, Tom Ridge, Mark Schweiker, and Ed Rendell and Acting Governor Mark Singel. They are all fine men. Four out of the seven of them are lawyers. But none of them are omniscient. All of them have disproportionately found the qualities of merit in the ranks of their supporters when it came time to make appointments.I do not like the auction-like qualities of some judicial (and other) elections. Nor do I like gubernatorial administrations being dominated by large campaign contributors or fundraisers. In the worst case circumstance, if I have a choice between having judges decided by who spends the most money in judicial elections and between who raises and/or contributes the most money to a governor's campaign, I would prefer the former.There is nothing magical about either elections or appointments. But elections give the public a say in who their judges are, and that fact alone serves to screen out extremists and create a significant public debate about who the best judges are. There is no similar public debate, for instance, when it comes time to filling vacancies for unelected administrative law judges in workers compensation, public utility regulation, environmental law, or other areas of state government.

September 13, 2007


Investigative reporting has been sorely lacking in comparing the chances of public interest attorneys, plaintiffs' attorneys, union attorneys and corporate attorneys of gaining seats on the federal bench -- or in examining the client and prior law firm base of judges who have ruled that gun manufacturers have no liability to families of murder victims; that tobacco companies have no liability to families of cancer victims; that the scope of permissible affirmative-action programs should be steadily reduced.

Advocates of “merit selection” hew to the line that merit is to be determined by the nebulous criterion of reputation rather than by objective measurable criteria. They do not seek civil service tests or advanced legal degrees or even extra hours of continuing legal education to measure legal knowledge, or any specific measure of legal scholarship, or any specific measure of experience, objectivity or character. They believe that the definition of merit varies from individual to individual, from case to case, from day to day.

A system of elections in which all citizens have the right to participate is more likely to serve public interests than a system in which participation is limited to economic, legal and political elites.

March, 1998


I hope anybody who is hurt by a narrow loss on the Pennsylvania Supreme Court will remember the great victory of defeating a progressive centrist judge on the basis of his expense vouchers. Many thousands of individual Pennsylvania citizens--perhaps even millions of Pennsylvania citizens--will suffer financial losses far greater than Nigro's expense vouchers as a result of his loss.As a result of his loss, the weaker financial party will be disadvantaged in areas ranging from divorce to governmental benefits to individual dealings with corporations and governmental agencies. It ain't about expense vouchers, folks. It's about whether you want a Democratic Supreme Court and all the policy which that imnplies or an all Republican Supreme Court by 2020 as Republicans probe for weaknesses in Ralph Cappy and Max Baer in future elections.The attitude of "I am for the Democrat as long as there is nothing he or she can be attacked on" is the attitude that is the most effective form of Republican propaganda yet devised. If a Democrat is alive, there is something he or she can be attacked on.In California, Democrats had the sense to know that empowering right-wing Republicans is not a good idea. Some day, hopefully soon, Pennsylvania Democrats may reach the same conclusion. If we don't, we are doomed to be an insignificant minority in Pennsylvania despite our voter registration lead, and our core constituency will suffer greatly.

November 10, 2005



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