November 2019 Election Guide, Part 1

Part 1 – Superior and Commonwealth Courts

“The Tuesday after Halloween’s the day that’s really scary”
– Loudon Wainwright III

Every time politics comes up in conversation, I get out my soapbox and remind anyone who is willing to listen (or not) how utterly crucial state and local elections are. Our democracy was designed to have checks and balances, as well as systems of representation and governance that apply to local and state levels, as well as federal. However, that system only works if the public 1) takes the time to understand the issues at stake and 2) exercises its hard-won right to vote.

In my lifetime, I have observed the increasing polarization of our political parties and the increasing consolidation of power in our country’s highest office, both of which I find incredibly unsettling. There are many factors contributing to these trends, and I don’t intend to get into all of them in this post, but one of them is the disturbingly common behavior of our general public only going to the polls one day every four years.

In this and next week’s posts I will break down some of the items on Pennsylvanians’ ballot this November the Fifth, starting with something I had to research because it was new information to me: the elections and retentions related to the Commonwealth Court and Superior Court. These five items make up a good third of my ballot, and they will be on yours too if you vote in Pennsylvania.

At the bottom of the post, I have also included my own personal ballot cheat sheet for Election Day. Depending on where you live, it may be more or less helpful, but it will have some content pertinent to all Pennsylvanians and more for those who live in Allegheny County.

The Pennsylvania court system. Image credit: [1]

Pennsylvania Court Structure

Barring any massively-unpopular actions or gross misconduct (or a desire for an early retirement), the Pennsylvania Superior Court race will determine two effectively permanent positions until the mandatory retirement age of 75. I say “effectively permanent” because after judges are voted in for a 10-year term, the general public is able to vote for whether or not to retain them for another 10-year term, and so on until they age out. Once these judges are on the bench, they tend to stay there both because of actual merit, but also because voters tend not to pay much attention to these races and just vote “yes” to retain them.

In addition to the two open seats in the Superior Court (with four candidates looking to fill them), there are two sitting judges who are up for retention after completing their first terms. There are also two judges in the Commonwealth Court also looking to stay through the same process. Here’s the background behind this process for those of us who never had a decent government class…

Pennsylvania has four levels in its court system, and both the Superior Court and the Commonwealth Court sit on the same level, just below the Pennsylvania Supreme Court. Minor courts are at the bottom and decide if criminal cases go up to the Court of Common Pleas, which is where most trial courts for major criminal and civil cases take place. Appeals from those cases go to the Superior Court. Appeals from the Superior Court go to the Pennsylvania Supreme Court, but they only listen to a small number of cases (about seven percent or less) brought before them. The Pennsylvania Supreme Court’s ruling will stand unless the case is appealed further and taken to the federal court system.

The Superior Court reviews civil and criminal appeals from the Courts of Common Pleas across the state’s 67 counties. There are 15 judges on the bench, all of whom serve 10-year terms.[2] The salary listed on Ballotpedia.org is $191,926, but vote411.org lists the salary for the two new elected judges to be $199,114.

The Commonwealth Court is unique to Pennsylvania and was created in 1968 to take on some of the caseload of the Pennsylvania Supreme Court. It hears government cases only and has nine judges who generally sit in three-judge panels located in Philadelphia, Harrisburg, and Pittsburgh. Their salary is listed as the same.[3]

Our state Superior Court, showing more diversity than I honestly expected to see. Image credit: [4]

How Retention Works

Systems for filling judicial benches vary by state. Pennsylvanians elect these judges for 10-year terms. At the end of the term, instead of having to compete for their seat against an opponent (as with other political offices), they get to exercise something akin to squatter’s rights: the ballot asks if they should be “retained” for another 10-year term. A simple majority will keep the judge in office. Once they are on the bench, they are subject to retention elections indefinitely until the mandatory retirement age of 75.

Judges can also be appointed by the governor in the case of an unexpected vacancy in the middle of a term, but that judge will have to go through an election process to keep the seat at the end of that term. An op-ed in the Pittsburgh Post-Gazette[5] describes the process in a little more detail than I have here, if you are interested. Ballotpedia.org has a good summary of the process as well as the pros and cons:

Support for the retention system:
“The retention system is said to protect judicial independence by insulating the judicial selection process from the influence of partisan politics. Unlike processes where judges must run for election and re-election against other candidates, merit selection eliminates the need for judges to fundraise, advertise and make campaign promises which could cause them to make rulings based on outside influences rather than the law.

At the same time, the method allegedly protects judicial accountability because the general public is still given a voice in whether or not they should continue serving. Judicial evaluations … help voters gauge judges’ integrity, impartiality, legal ability, temperament, court management, health and sensitivity. If a judge falls short on these metrics, or if he or she earns a reputation for heinous courtroom behavior, voters are able to remove him or her from office.”

Criticism of the retention system:
“Retention elections … are criticized for not giving voters a more direct voice in choosing those who occupy their judiciary. Once judges are appointed to the bench (or elected, in the case of Illinois and Pennsylvania), critics say that they’re essentially being given a life term, since voters are unlikely to do their homework on candidates.”[6]

Go vote – but please do your research before you go. Image credit: [7]

OK, but how do I select a good candidate?

Here is my dilemma: as mentioned above, once voted in, it is unlikely that a judge will be voted back out. The solution should be for every voter to figure out whether or not the candidates are worthy of election and the sitting judges worthy of retention. Not having a law degree myself or much visibility into the records of these judges, determining merit for each is a very difficult thing to do.

However, there are sources that make recommendations for those of us who don’t spend our days in the judicial world. For example, the Allegheny County Bar Association recommends retention for both of the Allegheny County-based judges (with no statement either way on the others)[8], and the Pennsylvania Bar association recommends retention for all four judges (with detailed information on their website about why)[9].

Now, I am new to understanding this process and checking bar association websites for recommendations, so I am not sure how frequently we actually see a judge not being recommended for retention, but I would venture a guess that it is rare that a bar association actually recommends the ouster of one of its judges. Given that, I personally will be balancing the fact that 1) the bar associations have more awareness than I do about the fitness of these judges to stay on the bench, and 2) the bar associations may have incentive to “recommend” sitting judges unless there is a significant reason not to.

As for the four candidates vying for the two seats on the bench, there are recommendations on election candidates from Pennsylvania Bar Association,[10] and I will be taking those into consideration when making my decision. There is basic information on each of them in the spreadsheet attached below, but if you want to look deeper than the Pennsylvania Bar Association recommendations, I would suggest looking into their previous experience and rulings, or asking any friends or colleagues in the legal system (as I have been doing).

In closing (for this week), I will say that I am not in a position to tell anyone how to vote, but I do want to leave you with this thought…

There has been a lot of concern recently about how the US Supreme Court will handle certain cases brought before them. While that bench is filled by presidential appointment, and we the people have little to no influence over those decisions, in Pennsylvania we do have a say over the judges who will hear cases before they get to the Supreme Court, should they be appealed. I would strongly recommend that if you are at all concerned about what you see in the federal court system, you take a look at the justices up for election and retention before you exercise your right to vote.

Click here for my voting guide of statewide and Allegheny County races:

November 2019 Voting Guide – 11.3.19 Download

Do you have any thoughts on these candidates? I would welcome your comments below, but please remember to be civil to your fellow voters.

More ballot topics next week.
Thanks for reading!

Keep Reading –>

[1] https://whyy.org/articles/explainer-how-does-pas-court-system-work/

[2] https://ballotpedia.org/Pennsylvania_Superior_Court

[3] https://ballotpedia.org/Pennsylvania_Commonwealth_Court

[4] http://www.pacourts.us/courts/superior-court/superior-court-judges

[5] https://www.post-gazette.com/opinion/Op-Ed/2019/10/24/David-A-Harris-Do-you-know-which-judges-to-vote-for/stories/201910240050?fbclid=IwAR3QfI6I7cDG8DNjYbEfaT6hD7Ula5IsgmEgyj0qwlij_dvjOtU3BvM39-k

[6] https://ballotpedia.org/Retention_election

[7] https://www.wesa.fm/post/pennsylvania-require-voting-machines-paper-backup