A longstanding effort to change how Pennsylvania picks judges for its three high courts is diverging into two paths: selection based on merit, and election by regional district.
However, some lawmakers think a middle road might be possible.
It emerged during a Judiciary Committee meeting in the state House on Wednesday, in which lawmakers debated and passed two conflicting constitutional amendments.
One would get rid of the commonwealth’s current system in which Supreme, Superior and Commonwealth Court judges are picked in partisan, statewide elections and go up for retention votes after 10 years.
Instead, it would have the governor pick candidates from a list, and the Senate would confirm or reject them.
The merit selection concept has been around for years but this version, sponsored by Franklin County Republican Paul Schemel, added a provision in which judges are picked from three legislatively-drawn judicial districts.
Schemel said he supports the bill with or without that geographic component, but that it is “critical to getting the bill passed, we believe.”
That’s because the other bill the committee passed hinges totally on the idea of regional representation.
Sponsored by Lebanon County Republican Russ Diamond, it would maintain judicial elections, but those elections would be within districts much smaller than the ones Schemel is proposing.
There would be nine for Commonwealth Court judges, 15 for the Superior Court, and seven for the Supreme.
“I think me and someone from Philadelphia may disagree about what the constitution might mean as far as when we construct statutes,” Diamond said. “I think when those statutes are interpreted and practically applied by our courts, those same, diverse opinions ought to come into play about what the law means.”
Both bills passed by largely party lines, with Democrats voting “no” and minority Judiciary chair Tim Briggs advocating for further hearings.
Not all Republicans were happy with the regional path the party seems to be taking, however.
Todd Stephens, a moderate GOP member from Montgomery County, said he supports merit selection but that “the law should be fairly interpreted across the commonwealth with some uniformity.”
“I think that the law is the law,” he said. “We ought to maintain the holistic approach of ensuring we have the best and brightest on the court from all over Pennsylvania regardless of their county or town of origin.
He pointed to data from the Disciplinary Board of the Supreme Court, which shows that attorneys—the only people who are eligible to be judges—are strongly concentrated in urban and suburban counties, and argued it makes sense they would be represented on the courts in greater numbers.
Philadelphia has 14,225 active attorneys, while rural Sullivan and Cameron counties, for instance, have six and five respectively.
Rob Kauffman, who chairs the House Judiciary Committee, noted it’s early in the amendment process and both Schemel and Diamond’s bills—and other permutations thereof—will see “a lot of conversation before this gets to the floor.”
He noted, his gut reaction is that Diamond’s approach has significant support—but added that a hybrid regional-merit bill has never been attempted.
“Who knows,” he said. “Maybe Representative Schemel is correct and this is the magic bullet.”