There went the judges.  They were all over the ballot last Tuesday – Pennsylvania Supreme Court (one seat), Superior Court (four seats), Commonwealth Court (two seats), Court of Common Pleas (in Montco, seven races).  Then there are the “retentions” (one for Superior Court and one for Commonwealth Court; the ballot for local judges varies, depending on your county).   Picking judges is a pretty ho-hum affair, but not this year, when two juvenile court justices in Luzerne County put the workings of the judiciary on trial.  Yet voter turnout was still barely visible at 20 percent statewide.  Why?  The problem goes way beyond an apathetic electorate.

OK, we elect judges because, well, this is a democracy.  So the voters diligently consider their background and experience, their positions on the issues, their priorities and promises to take action and . . . But not for judges.  Actually, there are few positions taken, there are no priorities presented and there are certainly no promises made  –  at least in public.  Some murky policy of judicial ethics based on seven “canons” gathering dusk somewhere in Harrisburg discourages all that – and probably for good reason.  So how do we judge the judges?  

The PA Bar Association has an answer.  In “Ten Traits To Consider In Voting for Judges” they cite the following: legal ability; trial experience; character and integrity; financial responsibility;  judicial temperament; mental and physical capacity; community involvement; administrative ability; devotion to improving the quality of justice; and good work habits and the ability to set priorities (no kidding). 

So how do typical voters – especially those who are neither connected to the courts nor a candidate’s next-door neighbor – possibly employ these criteria?  Can you glean insights from their cable TV ads or maybe from the press’ not-so-extensive reporting on the judiciary?  If you check out judicial candidate bios in the PA League of Women Voters Guide to the 2009 election or other sources, your eyes will glaze over from the myriad listings of community involvements, bar association memberships, career highlights.  Out of context, evaluating such isolated facts and making comparisons between candidates is pretty meaningless and has no clear connection to what underlies the Bar Association’s ten traits.  

My favorite of the Bar’s big ten, aside from good work habits, is financial responsibility, which, according to the Bar, includes “the ability to resist pressures that might threaten judicial independence and impartiality.”  How did that one play out on the campaign trail?  

The 2009 PA State Supreme Court race epitomized the campaign money ethics charade.  Orie Melvin assailed Panella for raising $1 million from trial lawyers, who are not exactly a disinterested party to the question of who sits on the state’s highest court.  She argued: “The public’s perception is it is pay-to-play, or justice for sale.”  But Melvin also received a donation from the same lawyers group, but hers was only for $125,000, so . . .  Meanwhile, Melvin, whose sister, Senator Jane Clare Orie, is a leader of the Senate Republicans, reportedly received a handsome contribution from the Senate Republican Caucus.  Probably only a hopeless cynic would wonder if, using Melvin’s own logic, that the “perception” could arise that an issue dear to the Senate Republicans could get an especially sympathetic hearing before Judge Melvin.  

Not surprisingly, during the last week of the campaign the candidates abandoned their judicial sobriety for a frenetic leap into the political mud.

Some necessary background: the backdrop to all of Pennsylvania’s judicial races in 2009 was the horrific scandal in Luzerne County involving judges railroading kids into jail for cash.  This judicial nightmare has finally entered the spotlight it deserves.  Thousands of children accused of mostly first-time minor infractions were deprived of counsel and hauled away in handcuffs to private detention centers in Luzerne, providing the judges kickbacks of some $2.6 million.  This was a complex and systematic scheme victimizing kids accused of crimes that apparently in most counties across the nation would have gotten them barely a slap on the wrist and maybe some counseling.  Aside from bad judges, it required an agreeable or amazingly blind county government willing to close down its own juvenile jails and instead lease high-priced space through a developer and owners of two detention facilities with whom the judges colluded. The seething question is who knew or had suspicions about the high corruption at the county courthouse and whether complaints were filed with judicial authorities.  

The tie-in to what turned out to be a nasty Supreme Court contest is that Superior Court Justice Jack Panella (Orie Melvin is also on the Superior Court) chaired the state Judicial Conduct Board in 2006, when the panel received a complaint about the Luzerne youth detention scheme.  The state Republican Party claims in a TV ad that the Judicial Conduct Board failed to act on the complaint.  Panella along with five former Conduct Board members, vehemently denied the charge.  Further, they claimed that the Luzerne federal prosecutor agreed that the Conduct Board "not only did the right thing" by notifying the authorities, "but they did so expeditiously."  Read more.  Meanwhile, Orie Melvin's supporters also cried foul over a Panella ad that allegedly attacked her judicial temperament, rulings and impartiality.  Read more. 

Orie Melvin’s attack on Panella is about as brutal as it gets – the Luzerne scandal makes one’s skin crawl.  Problem is, it was fair game if accurate and reprehensible gutter politics if not. Typical of the way these things work and why they’re so effective, there was no way for voters to sort it before casting a ballot.  One might argue that the burden of credibility should be on Orie Melvin, but this is the real political stage - not a high school debating society.  It is unclear whether the Interbranch Commission on Juvenile Justice now holding hearings and investigating the juvenile court scandal will tackle the delicate issue of the Conduct Board.  However, in the recent Temple University debate between Orie Melvin and Panella, Pennsylvanians for Modern Courts, a group leading the push for merit selection of judges, asked the candidates if they would be willing to open up the records of the Conduct Board and both said yes.  While it is unclear how  the issue affected the election outcome - Orie Melvin won with 53 percent of the vote - the question of how the Conduct Board responded should be pursued and resolved.  It may be no exaggeration to say that the integrity of PA’s  judicial system hangs in the balance.  

The flurry of attack ads from both sides made it clear how high the stakes were for this seventh Supreme Court seat.  Too bad the voters weren't clued in.  A justice from the majority party (the Republicans, it turned out) will likely break a legislative deadlock on the redistricting of legislative seats required on the basis of the next census.  This is the seemingly inevitable gerrymandering of district lines that our state constitution allows and facilitates every ten years.  It is very serious political business, and guess who is smack in the middle of it: the Supreme Court.

The ethical breakdown at the Luzerne County Courthouse puts both the Pennsylvania judiciary and county government symbolically on trial - at least it should.  Local officials are already telling us that “it can’t happen here.”  Until real transparency, clear lines of accountability and a sensible judicial selection process are in place at every courthouse, they are just plain wrong.