Chapter 6 Case Study: Judicial Selection in Pennsylvania

Donors in Pennsylvania elections in 2023 contributed a whopping $22 million to influence the election outcome. The spending broke statewide records for this race and also saw an increase in outside funding, which is when money contributed to a candidate or campaign comes from a person or organization outside of the state in which the race is held. The cost of the race itself is relatively low compared to other statewide elections, but what made this particular one interesting is that it was a partisan election for the Pennsylvania State Supreme Court.

The state of Pennsylvania holds partisan elections for its judicial branch on “off-election” years, fulfilling either six-year or ten-year terms depending on the specific court, eligible for reelection or “retention” until the judge reaches the state mandatory retirement age of seventy-five years old. Six other states host partisan elections for the judicial branch (Alabama, Illinois, Louisiana, New Mexico, North Carolina, and Texas), while thirteen states hold nonpartisan elections, five use gubernatorial appointments, two states (South Carolina and Virginia) give their legislature the power of appointment, and one state (Michigan) uses a special hybrid of nonpartisan general elections after an initial partisan selection process.

The variety across states with the selection of how judges come to the bench highlights a particular division between some state approaches to the judicial branch compared to the federal process. The framers of the US Constitution intentionally created the courts as appointed positions for life because of their interest in ensuring neutrality. They famously had very little trust in the public (hence the establishment of the Electoral College to determine the presidency and the initial selection of senators by the state legislators and not voters). Empowering the president (responsible for nominations) and the US Senate (responsible for confirmations) with the appointment process affirmed that qualified individuals would be considered for the positions, and their lifetime appointment would make them impervious to political whims.

Some state constitutions shared the concerns of giving voters power in elections in the judicial branch, but the push of the Progressive movement and the interest in making judges accountable to the public led many states to adopt election processes for selecting the members of their judicial branch. Pennsylvania’s State Constitution of 1968 provided elections for the commonwealth’s unified judicial system (which was established in its previous constitution in 1874 as a change from appointments in the three previous state constitutions). Typically, judicial elections elicited lower voter turnout because voters were less familiar with the candidates and the roles of their office. In Pennsylvania, where the elections are held in off years, turnout is more likely to be lower, but the timing helps curtail down-ballot effects (or the impact voting for president may have on other races on the ballot) for executive or judicial branches.

Which approach to judicial selection is more democratic and compatible with the objectives of the judiciary? On one hand, providing voters with a say in their state government offices empowers them to have control and authority, though their votes may be less informed by the justice system and more by partisan preferences. On the other hand, providing gubernatorial appointments or retention processes that give more power to other public officials removes voter impact with a more concentrated influence that will include its own biases and preferences. For the judicial branch in Pennsylvania, running competitive and expensive campaigns is key for a judge to earn their spot on the bench, just like elected office holders in the other two branches of state government.

Critical Thinking Questions

While all states elect their legislature and their governor, some use alternative processes (appointment, retention, etc.) to select their judges. What makes the judicial branch different in this way, and why would some states use a different mode of selection for their executive and legislative compared to the judicial?

As the last paragraph in the case study noted, there are benefits and disadvantages to each system of selection in state judicial branches. Which process do you think is best, and which value (justice, equity, fairness, accountability, etc.) does it emphasize? Why do you think this method is preferable to the other options?

Research your state constitution to review how judges come to the bench in your state. What role do you see your state’s process playing in policy, whether the discussions or decisions involve constitutionality?