Photo: Christian Schwier

Many of us who are deeply committed to the rule of law and the independence of the judiciary rue the encroachment of partisan politics on the third branch of government. As Chief Justice John Roberts felt compelled to state last year, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for," New York Times, Nov. 21, 2018.

Yes, we should be very thankful for that independent judiciary and ever on the alert to protect it when actions, no matter how dressed up or described, could work to undermine it.

Here is a case in point.

Recently, Pennsylvania Reps. Matt Dowling and Justin Simmons introduced legislation, HB 1987, to eliminate the option of candidates for school board, county courts of common pleas and magisterial district/Philadelphia Municipal Court to file nomination petitions for multiple political parties, commonly known as cross-filing, and appear on primary ballots (only) in more than one parties' list of candidates.

Their stated reasons for proposing this reform are as follows: "These positions were originally intended to be nonpartisan in nature, but with the advent of money in politics and a hyper-partisan political system, these positions have turned partisan. In addition, while voting, voters can get confused when a candidate is nominated for more than one party. This can leave them uncertain on which candidate truly aligns with their philosophical beliefs."

This proposed legislation strikes me as attempting to throw out the baby with the bath water or throwing in the towel on nonpartisanship and jumping on the partisan bandwagon for no reason other than capitulation.

And while I cannot speak to the representatives' motives in proposing HB 1987—concern that Republicans could unwittingly vote for judges who file as Democrats in their personal lives; that voters might evaluate candidates on their qualifications for the courts and not political party backing—I can speak to why this legislation is a bad idea for Pennsylvanians.

Currently, Pennsylvania is one of only six remaining states that hold partisan elections for all their judges. We are in the company of Alabama, Illinois, Louisiana, New Mexico and Texas. All other states either hold nonpartisan elections, appoint their judges or have a combination of these selection processes with partisan elections. Eliminating the one practice in Pennsylvania that hints at nonpartisanship moves us in the wrong direction.

While efforts to bring a hybrid judicial selection process to Pennsylvania—a bipartisan-nominating process for all statewide appellate judges with elections for local judges—have temporarily fallen into the partisan abyss that is Harrisburg (and the country) these days, we should not lose heart entirely. Allowing bills like HB 1987 (and HB 196—continuing with partisan elections and exacerbating their impact by creating a myriad of small electoral districts) to advance in these dark times will only help to perpetuate them.

We should continue to champion efforts to bring nonpartisanship/bipartisanship to the selection of the most highly qualified candidates for the bench. We should work harder to inform residents of our state about the role of the judiciary, why its independence from the other branches of government and political parties is essential to our democracy. We should clarify what qualities, experience and education have characterized great jurists. And we should dispel the notion that political affiliation, rather than judicial philosophy, should be a consideration for voters, let alone the only consideration.

I agree with Reps. Dowling and Simmons that the advent of money in judicial elections is helping to fuel the perception (and reality) of partisanship. We know we have our own version of an arms race in Pennsylvania with interest groups scrambling to outspend each other in the hope of electing judges they believe will champion their positions on the bench. (The two most recent elected judicial candidates spent no less than $1 million each on their campaigns, with those funds coming, in part, from parties who will appear before those judges.)

Instead, let's provide resources for public consideration and debate of the judicial-selection options available to Pennsylvanians. And while we continue to elect our justices and judges, let's encourage our bar associations and other nonprofit organizations to continue to evaluate judicial candidates fully and to disseminate their findings more broadly, so that voters go to the polls with the information they need to choose their judges. But let's not throw in the towel and work to destroy whatever opportunities for thoughtful consideration remain in our judicial races.

Maida R. Malone is the president and CEO of Pennsylvania for Modern Courts, a nonprofit organization dedicated to identifying and speaking out on issues that impact the public's confidence in our courts, with the goal to reform and modernize the judiciary.