Judicial Elections
How does Pennsylvania choose its judges?
How are judicial elections conducted?
What method does it employ to retain them?
All magistrates, trial court judges, appellate court judges and state Supreme Court Justices are chosen by voters in partisan elections in Pennsylvania. Trial and appellate court judges — Superior and Commonwealth Courts — and Justices serve ten-year terms, with elections held in odd-numbered years. No judge or Justice is term limited, although at age 75, judges must retire from the bench unless the Supreme Court grants them approval to continue serving as senior judges.1 (This caveat does not apply to the Justices, who must retire upon reaching 75.) Upon completing a ten-year term, any judge or Justice may seek another term by running in a retention election. In a retention election, the judge’s or Justice’s name appears on the ballot without a party label, and citizens vote yes or no with a simple majority required to be retained. Most judges who pursue retention and all Supreme Court justices, except for one, have successfully won retention.2
When a mid-term vacancy occurs on any Pennsylvania bench, the governor may nominate an individual with appropriate qualifications, who then must be confirmed by a two-thirds vote of the state Senate before completing the remainder of the term. There is no requirement that a governor solicit nominees or recommendations, although the Pennsylvania Bar independently evaluates and recommends justices and judges. Some governors, beginning with Scranton in 1964 and most recently Wolf, have empaneled nominating or advisory commissions to assess and rank judicial candidates. In periods of divided government, it is common for governors to negotiate with state Senate leaders to win approval of nominees favored by both sides, which can appear to politicize the confirmation process.
Because all judicial elections are partisan, all judicial candidates must first win a primary election before moving onto the general election. Judicial candidates circulate petitions to appear on the Democratic and Republican Parties’ ballots. Each party has requirements for the number of voters’ signatures and the number of counties that must be represented among the signatures. Candidates may cross-file to appear on both parties’ ballots, but they must successfully meet each party’s petition requirements. Cross-filing frequently occurs in common pleas and magisterial elections, although it is not as common in appellate court elections. Should a cross-filing candidate win both parties’ primary elections, then the general election’s outcome is a foregone conclusion.
Pennsylvania’s judicial elections are frequently low turnout affairs, barring some event that captures voters’ attention, like a scandal. Among citizens who do participate, many have little knowledge of candidates beyond the candidates’ names and party affiliations, even for incumbents standing for retention. In low information elections, ballot position significantly affects a candidate’s chance of winning, and in the Keystone State, ballot position is literally the luck of the draw, as candidates’ names are pulled from coffee cans, cigar boxes, or hats in state and county election offices. Research strongly suggests that appearing at or near the top of a ballot’s list or among the names in the first column of candidates when there are two or more columns is more important than a party, newspaper or celebrity endorsement.
Candidates may express their personal opinions broadly on issues, such as crime or taxes, during judicial campaigns; they may not, however, “make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” Typically, judicial candidates avoid taking controversial positions, preferring instead to speak about their qualifications, experience and commitment to equality, justice and the legal system.3
Judicial campaigns can be expensive, especially for the appellate courts. Successful campaigns require that candidates raise money like gubernatorial and legislative candidates. Pennsylvania’s weak campaign finance rules also apply to judicial candidates with one important exception: they are forbidden from personally soliciting contributions. Instead, campaign committees authorized by the candidates seek donations on a candidate’s behalf or form a PAC that raises and spends money for a candidate. Additionally, individuals and groups may raise and spend money independently of a candidate’s campaign. Many judicial candidates loan their campaigns money, which is legal, expecting that, upon winning, the debt will be repaid from the contributions that will roll in after the victory. And in a tradition unique to the Philadelphia Democratic party, judicial candidates can pay the party $35,000 for the opportunity to be endorsed by the party, and they may also choose to hire “political consultants” to convince the city’s 69 ward leaders to support the candidate, for whom the ward leaders direct their committee people to distribute sample ballots at each voting precinct in their wards.
Like other Pennsylvania elections, there is no limit on how much an individual or group may donate to a judicial campaign, and most candidates take advantage of donors’ generosity. Hundreds of thousands of dollars have been raised for a single candidacy, and millions have been spent on television ads alone in past elections. There is no requirement that candidates disclose their donations’ sources beyond what the candidates include in their campaign finance reports, which lack detail. Most contributors to judicial elections are individual lawyers, law firms or organizations and businesses with questions to be decided by the courts, and their contributions are legal, even if the lawyers appear before the judges to whom they have contributed. Such contributions raise legitimate questions about conflict of interest and judicial impartiality. Duquesne University Law Professor Bruce Ledewitz, however, has said that “he doesn’t believe campaign dollars corrupt judges or taint their ability to make impartial decisions. But … it fuels what has been a long-standing debate in the state about whether judges should be elected or appointed.”
Several methods for selecting judges are used across the country:
- Along with Pennsylvania, seven other states use a partisan election method. (Alabama, Illinois, Louisiana, North Carolina, Ohio and Texas)
- 14 states use non-partisan elections, in which the candidates appear without a party label. (Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia and Wisconsin)
- 9 states allow their governors to select the judges, some with confirmation by the state’s Senate and some without (Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont), as also does the District of Columbia.
- 2 states have their state legislatures hold votes to select their judges. (South Carolina and Virginia)
-
14 states have adopted a merit selection system, also known as
the Missouri method.
(Alaska, Arizona, Colorado, Florida, Indiana, Iowa, Kansas,
Missouri, Nebraska, Oklahoma, South Dakota, Tennessee, Utah
and Wyoming)
In the Missouri method, a commission of lawyers, judges and citizens nominated by the legislature, governor, and other groups (which vary by state) consider nominees for judicial positions and recommend up to three names (again varies by state) to the governor, who selects one person for each judicial vacancy. In a few states, the gubernatorial selection must also be confirmed by the state Senate. At the end of their probationary (3–5 year) terms in these state-Senate confirmation examples, judges and Justices must run in a retention election to serve a full ten-year term. - The remaining four states use a hybrid system that mixes elements from several of the methods previously described. (California, Hawaii, Maryland and New Mexico)
Additional Information
For additional information on this subject, see chapter 7 of Baldino, Thomas J. and Holoviak, Paula. 2024. Pennsylvania Government and Politics: Understanding Public Policy in the Keystone State. State College: the Pennsylvania State University Press.
For more information about judicial reform, see the Pennsylvanians for Modern Courts website.
Notes
- The Pennsylvania electorate approved a Constitutional Amendment in November 2016 that raised the retirement age to 75. The Amendment was not without controversy as two former state Supreme Court Justices joined a private attorney to challenge the wording of the Amendment, drafted by Secretary of State Pedro Cortes, as unnecessarily complex and confusing. The Wolf administration eventually agreed to simplify the language by removing any reference to the present retirement age of 70. ⇧
- Justice Russel Nigro lost his retention election in 2005, a casualty of the General Assembly’s 2005 midnight pay raise vote. He became the first and only justice to date to lose a retention election. After the Assembly repealed the pay raise, the Supreme Court ruled that the repeal did not affect any justices’ or judges’ salaries, further angering voters. Ironically, Nigro, a Philadelphia Democrat who voted with the minority, lost, while Justice Sandra Schultz Newman, a Philadelphia Republican also running for retention and who voted with the majority, won. ⇧
- On rare occasions, judicial candidates deploy negative attack ads to discredit their opponents as happened in the race to fill a Supreme Court vacancy in the fall of 2021. Republican Commonwealth Court Judge Kevin Brobson’s ad claimed that Democratic Superior Court Judge Marie McLaughlin “chose to void the guilty plea of a drunk driver who admitted to killing a pregnant woman and her unborn child,” when, in fact, she voted with another judge to permit the defendant a new trial because of incompetent defense counsel. The Pennsylvania Bar Association declared that the ad’s content had violated “standards of accuracy and integrity in campaign advertising that both campaigns agreed to follow as part of the bar’s candidate evaluation process.” Brobson won the general election anyway. ⇧