Jump down the rabbit hole with me for a moment and imagine a world where U.S. Supreme Court justices are selected the same way Pennsylvania Supreme Court judges are chosen.
Elena Kagan wouldn't be doing a head count of senators whose votes she needs for confirmation; she'd be engaged in a mega-million-dollar election campaign against her opponents.
That's how we do it in Pennsylvania: subject all our state judicial candidates to partisan elections. But now, there's more reason than ever to scrap our judicial elections in favor of a merit selection process.
This year's U.S. Supreme Court decision on campaign finance, Citizens United v. F.E.C., raises the specter of even bigger sums of money being injected into judicial races around the country, including in Pennsylvania.
In Citizens United, the court determined that corporations -- and by implication, unions -- can no longer be limited in how much they spend to help elect candidates. And that applies to judgeship races.
The decision is bound to magnify the flaws of judicial elections and further breed public cynicism about the courts. In the words of retired Supreme Court Justice Sandra Day O'Connor, a critic of judicial elections, "It looks like it's going to get worse before it gets better."
The fact is, big money has already arrived in Pennsylvania judicial races. In last year's bid for a seat on the Supreme Court, eventual winner Joan Orie Melvin and her Democratic challenger Jack Panella raised a record $4.66 million combined. That reflects a nationwide trend in which sums spent on judicial races have more than doubled in the last decade.
The mixture of money and judges fuels the perception, according to Justice O'Connor and many others, that justice may be for sale.
Consider a survey of 500 respondents in late May by Pennsylvanians for Modern Courts. Three quarters said they believe campaign contributions have some influence on judicial decisions. While that sample is not huge, it reaffirms state and national surveys over the years. In 2002, a similar survey indicated that nine of 10 Pennsylvania voters believed large campaign contributions influenced judicial decisions.
Now consider a study of all the civil cases that reached the Pennsylvania Supreme Court in 2009 and 2008. In 60 percent of them, at least one justice had received a campaign contribution from a lawyer, litigant or law firm involved, according to the American Judicature Society. No data show that campaign contributors received more favorable treatment in those cases. But certainly the appearance of improper influence hovers over the court.
"If the public doesn't have confidence that the courts are fair and impartial, we have nothing," said Shira J. Goodman, associate director of Pennsylvanians for Modern Courts.
Judicial elections led to the kind of jaw-dropping conflict of interest in which a West Virginia Supreme Court justice cast the swing vote to overturn a huge jury award against Massey Energy Co. after the company's chairman spent $3 million to help elect him. And of course, if judges were appointed in Pennsylvania, the allegations that Justice Orie Melvin's sisters improperly assisted her election campaign never would have arisen.
Changing the system won't be easy. It requires an amendment to the state constitution, which means legislation passed in successive legislative sessions and then a statewide vote. But there appears to be some momentum for change.
Gov. Ed Rendell and his three Republican predecessors recently joined to support efforts to adopt merit selection of the state's appellate judges. Legislation in the General Assembly would establish a diverse, 14-member commission responsible for recommending worthy candidates for appointment by the governor and confirmation by the Senate. Appointed judges then would face a nonpartisan retention vote in four years. (Currently, judges face retention votes 10 years after they are elected.)
The survey by Pennsylvanians for Modern Courts indicates a majority of Pennsylvanians support a change. And an overwhelming number support an opportunity to vote on such a constitutional amendment. The last time they had the chance was 40 years ago, when judicial elections narrowly prevailed.
Perhaps we've reached the point where we recognize that judges should be different than other politicians, and the way we select them should be as well. Unlike presidents, governors, senators and mayors, judges are not supposed to represent constituencies and fulfill campaign promises.
Down the rabbit hole, anything goes. But up on the bench, fund-raising prowess and name recognition should not be on par with the qualities we all value in judges -- independence, fairness and respect for the law.
Cartoonist Rob Rogers does "Rob's Rough," an early look at his work and his creative process, exclusively at PG+, a members-only web site of the Pittsburgh Post-Gazette. Our introduction to PG+ gives you all the details.