The Pa. Bar Association carefully creates judicial candidate ratings. But do they actually serve voters?

By: - November 1, 2019 6:30 am

The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)

Pennsylvania’s appellate court judges hear thousands of cases every year. They can overturn precedent, rewrite state laws, or — in rare cases — realign the balance of political power.

Since 1850, the state has given the choice to pick these arbiters of justice to the voters in partisan elections — one of 18 states to do so.

And for voters hoping to make an educated decision, the options to do so are limited.

Under the Pennsylvania Code of Judicial Conduct, judicial candidates cannot “make pledges, promises, or commitments” on specific issues, or on cases that could appear in front of them. That’s to protect the impartial image of judges.

Judicial candidates may get endorsements from interest groups, such as unions and gun rights organizations. But they cannot say how they would rule if a gun law or employment case were brought before them.

Candidates also cannot directly ask for campaign donations, which leads to large amounts of outside spending on ads from interest groups, from trial lawyers to business groups. 

With their public remarks constrained and information coming from interested parties, an objective non-ideological review of a candidate is limited to one main source — the Pennsylvania Bar Association.

The bar, a professional association of state attorneys, has been rating candidates since 1997.

The association has a Judicial Evaluation Committee, made up of 18 members — 12 lawyers and six who are not — that receive applications for review.

Heidi Massano, a Reading-area attorney, is the committee’s current chairperson.

“Our overriding motivation is to inform the public,” she told the Capital-Star.

She said the committee investigates judicial candidates by interviewing lawyers they’ve faced off with, judges they’ve argued before, and other professional associates.

The committee then interviews each candidate in person. The combined information is considered by the committee and turned into one of three ratings:

  • Highly Recommended: “The candidate possesses the highest combination of legal ability, experience, integrity and temperament and would be capable of outstanding performance as a judge or justice of the court for which he/she is a candidate.”
  • Recommended: “Based on legal ability, experience, integrity and temperament, the candidate would be able to perform satisfactorily as a judge or justice of the court for which he/she is a candidate.”
  • Not Recommended: “Based on legal ability, experience, integrity or temperament, or any combination thereof, at the present time, the candidate is inadequate to perform satisfactorily as a judge or justice of the court for which he/she is a candidate.”

When the committee evaluates potential judges, Masano said members tend to “consider trial experience to be a plus,” but will also “look at other kinds of legal experience that can make an individual a successful judge.”

‘We’re not telling anyone for whom they should vote’

There are four candidates fighting for two seats on the state Superior Court this year, a mid-level appeals court for criminal and most civil cases.

Three candidates are recommended by the bar this year — Democrat Dan McCaffrey, who was highly recommended; and Republicans Megan King and Christylee Peck, who were recommended — have years of courtroom experience as judges or attorneys.

Pennsylvania’s Superior Court, explained: Why you should pay attention to this November race

The fourth, Democrat Amanda Green-Hawkins, has a variety of experience — including two terms as an Allegheny County councilwoman, clerking for a New Jersey appeals judge, and 17 years as a lawyer for the United Steelworkers.

In its review, the bar cited her “work ethic” and integrity based on interviews with people close to her. But it ultimately said she does not have “the experience and preparation necessary” to be a Superior Court judge.

In an interview with the Capital-Star, Green-Hawkins said that as a black woman and union attorney, she thought her bar rating reflected that she doesn’t “look like the typical judicial candidate.”

“It’s not anything that union lawyers aren’t used to — being told that … we’re not prepared enough, or haven’t done enough,” Green-Hawkins said. “But again, we are in court, we are writing those briefs. We are handling arbitration proceedings.”

Her experiences, she said, would still apply to “see if there’s an error” by a trial court below her, even if her own trial experience is limited.

Recent candidates on the ballot in November without the bar’s recommendation haven’t succeeded.

Irene McLaughlin Clark, a Democratic candidate for Commonwealth Court in 2017, received a “not recommended” rating from the bar for a lack of experience. She lost by an eighth of a percentage point in a race where all the judges were within two percentage points of each other.

In 2015, Anne Covey, a Republican who was not recommended by the bar for violating campaign rules, ran for the Supreme Court. She finished last among major party candidates with 13.6 percent of the vote in a seven-way race. 

But the bar has also found some now respected jurists, such as current Supreme Court Chief Justice Thomas Saylor, a Republican, or fellow Supreme Court Justice David Wecht, a Democrat, unqualified during successful runs for the bench. 

Meanwhile, two Supreme Court justices who resigned in scandal — Seamus McCaffrey and Joan Orie Melvin — were “recommended” and “highly recommended,” respectively.

Masano declined to comment on any bar ratings, and was equally clear that the rating was just that — a piece of data to be considered by a voter.

“We’re not telling anyone for whom they should vote,” she said.

Judging judges

Bar ratings are not without their critics.

Widener University Commonwealth Law School professor Mike Dimino said in an email that courtroom experience, whether as a judge or a lawyer, may not be the best barometer for judicial work — especially when handling appeals.

When it comes to serving on statewide appellate courts, such as Pennsylvania’s Superior, Commonwealth, or Supreme courts, “experience as a practicing lawyer is all but irrelevant,” Dimino said.

If anything, Dimino continued, being, for example, an academic could be even more useful on the appellate bench, since “law professors spend their time analyzing legal issues and writing about the law in a way very similar to the way that an appellate judge does.”

But, Dimino said, bar associations may “tend to favor people like themselves — people with significant time practicing law.”

He added that bar associations have been accused of having a liberal skew “because the membership of the associations tends to be liberal and to have a sense of justice that is apt to favor people on the liberal side of the political spectrum.”

Others, such as Maida Malone, executive director of Pennsylvanians for Modern Courts, didn’t know if there is any bias in bar recommendations.

Her group wants to eliminate judicial elections in favor of merit selection, a political appointment system where a board of experts selects candidates that are then nominated by the governor and approved by the state Senate.

“What makes for a great jurist isn’t necessarily something voters can glean from the information available to them,” Malone told the Capital-Star.

But with judicial elections currently the constitutional way, Malone’s group holds judicial forums, including this year, to let voters hear personally from the candidates. The organization also maintains a list of judicial candidates for open seats on its website. 

Pennsylvanians for Modern Courts doesn’t rate candidates like the bar, but Malone does think it would be helpful if more groups — without a political ax to grind — stepped up to try to evaluate the bench readiness of candidates in Pennsylvania.

“What we expect from judges is to put aside, as much as humanly possible, their political leanings — all of the things that make up their sense of self — and try to decide the cases based on the law,” Malone said.

“It is a very difficult task.”

Your guide to Pennsylvania’s Nov. 5 general election

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.