THE TRIALS OF A COMMON PLEAS JUDGE

THE HONORABLE MARK I. BERNSTEIN

PHILADELPHIA, PENNSYLVANIA 2016

CHAPTER FOUR

AN EDUCATION BEGINS

THE COURT OF Common Pleas in those days was

divided into trinities each having their own rules,
procedures, methods, idiosyncrasies, and distinctive
characteristics. Each of these six courts was run by its
own President Judge elected by its three members who,
after election by the vote of himself and at least one
other judge of the same political party, ruled with
supreme and ultimate powerlike a Latin American
dictator whose tenure continued for so long as the
military (or in the case of Philadelphia, the political
party) to which that member belonged or the Supreme
Court permitted. One may wonder why a political
party or the Supreme Court could control any one of
the six independently elected President Judges who to
all external appearances would remain in power so long
as one other judge of their court had been treated so

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fairly or if necessary so preferentially as to remain

faithful to the original vote that had elected his brother
President Judge. However, in those days things did not
work as openly, clearly, and apolitically as perhaps one
may hope they do today.
Philadelphia in 1913 was controlled by an
exceptionally strong Republican political machine,
which regularly elected the Mayor and almost all other
municipal officials and which firmly controlled
statewide election to the appellate courts. Those few
Democratic Party judges who had achieved office did so
strictly at the sufferance of the Republican Party
leadership, by a system that I will shortly describe. The
President Judge of each independent court achieved
initial election to the bench either because of his longstanding political loyalty and service to the Republican
Party or because of a relationship with an individual
party official whose turn had come to select a candidate
for judgeship, or through family ties to a Congressman,
State Senator, or other plenipotentiary with sufficient
active political clout to dictate Republican nominees for
the bench. Those few Democrats who achieved seats on
the bench did so only because of an unwritten
arrangement whereby, in return for the solemn
agreement of the Democratic Party chairman not to
support reform truly nor present strong opposition
candidates to any positions of real political power, or
perhaps to render support for a needed bridge to end a
worthy neighborhoods isolation from the rest of the
county, the Republicans would on occasion provide up

THE TRIALS OF A COMMON PLEAS JUDGE

to a third of the judicial vacancies for selection by

Democratic Party leaders.
Unlike today where the weakened political
parties have deteriorated possibly to irrelevance and
judicial candidates with sufficient independent political
backing and financial resources can be elected without
party support, in those days the number of judges
elected other than through the party process described
above could be counted on the fingers of one hand
without any need to resort to the use of any digit but
the thumb.
This process was described to me by leaders of
both parties and by judges themselves as merit
selection. By merit selection they meant that
Republican elected and party officials, either personally
or through their personal designees, met in caucus to
weigh the merits of the candidates. Merits meant
whether the nominee was a member of the bar in good
standingor could with appropriate suggestion in the
right quarters be restored to good standingand had
performed sufficient public service to the partyor
was sufficiently well connected to those who hadthat
their turn for a judgeship had come, sometimes having
been passed over repeatedly with the solemn promise
that they were next in line when a vacancy should
occur. After these merits had been fully evaluated by
this elite and themselves meritorious body of citizens in
whom the public had repeatedly expressed their
resolute confidence through repeated election to high
office, a slate of merit selectees that precisely equaled
the number of positions available at election would then

THE TRIALS OF A COMMON PLEAS JUDGE

be jointly nominated by both parties and presented to

voters for electoral confirmation. So effective was this
system in selecting highly qualified individuals who
either were above reproach or whose reproachable
reputation had been recently restored by appointment
to highly respected commissions and committees for
which little or no work was required but no
scandalously high compensation was paid, that the
selection was ratified by remarkably high margins at
every election. Indeed so effective was this system in
selecting highly qualified individuals to run for judicial
office that the only successful path to judicial office was
the aforementioned service to the party or close
relation to an individual whose service to the party or
timely needed vote on an issue of political importance
required reward at that particular time.
Today, the psychic cost and financial contribution
required to obtain party endorsement from the
dominant party is hardly worth the expense beyond the
benefit of ensuring that no other candidate achieves that
limited advantage that amounts to support in a few
wards but access to all ward meetings across the city. In
recent years, even party endorsed candidates must
maintain independently funded campaigns and expend
additional financial resources, frequently to the same
politicians who control the party selection process. So
the tax for party endorsement, which can be of
marginal benefit to nomination, has become a financial
reward to the party faithful from those who naively
maintain an abiding faith in the system as it existed
twenty years earlier. At the same time, the previous

THE TRIALS OF A COMMON PLEAS JUDGE

solemn agreement between the parties to present a

unified slate has become a myth not only regularly
ignored but publicly scoffed at by majority party
members as a technique for the redistribution of wealth
resources from one party to another in return for
hidden personal favors to party leaders. But I digress.
In those early days of the 20th Century the elite
selection committees consisted of luminaries from
Philadelphia who were the Republican Governor, the
Speaker of the House, the Senate President Pro
Tempore, a Congressman, the Mayor, President of City
Council, and highly influential chairmen of committees
in the Senate. Sometimes these luminaries could not
attend and would be represented by their entirely
controlled designees.
I would be remiss if I did not specifically note
how different that antiquated system is from current
elections or the Merit Selection proposals that are
routinely touted by an often shifting and sometimes odd
collection of reformers, who are joined by machine
politicians whenever it is felt that reform credentials
are needed. Todays Merit Selection systems are
regularly proposed around election time to afford a
veneer of respectability and concern for good
government but regularly receive just slightly
inadequate support for passage in committee without
ever receiving the expenditure of the political capital
needed to actually effectuate change.
Under these modern Merit Selection proposals
elected officials such as the Governor, the Speaker of
the House, the Senate President Pro Tempore, and

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significant State Senatorial and House committee chair

would appoint their controlled supporters as designees,
along with a minority of incorruptible members such as
the deans of state law schools (who of course could
never be influenced by the millions of state dollars
received by their universities), to a Merit Selection
Panel that would review the qualifications of all who
wished to be considered for nomination. These notables
would then recommend attorneys for appointment
from whom the exact number of vacant judicial
positions available would then be selected by the
Governor and affirmed by the State Senate. One can
readily see the difference between modern reform
proposals and the former party machine selection
process where political office holders or their
controlled designees convened and upon selection
presented the names to the electorate to elect their
nominees. Under the modern Merit Selection
proposals, were they ever to become law, these elected
officials would lose their prerogatives, unless of course
they controlled their designees who would form a
majority of the Merit Selection Panel, in which case by
a one vote margin they could retain their power to
consistently name their agreed upon nominees.
In an odd conflation of events I learned that 35%
of the elected officials who actually picked judges in the
early 1900s had spent or would spend some time in
jail, as did 35% of the elected officials who would have
appointed the majority of designees who would have
selected judges under the Merit Selection proposals

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presented one hundred years later during the early

years of the twenty first century.
WATCH FOR CHAPTER FIVE
AUGUST 1, 2016