1/28/2009—I have been researching State Constitutional reform for a short documentary Duquesne is making about the role of former Governor Richard Thornburgh at the 1968 Pennsylvania Constitutional Convention. I was surprised to find that the effort in Pennsylvania to introduce merit selection of judges, as opposed to partisan election, was not due to some experience in our State, but was the result of a nationwide campaign conducted by the American Judicature Society. And that effort was itself reflective of the work of Roscoe Pound, who was a distinguished American legal scholar and educator.
Pound promoted efficiency in the administration of justice but also a sort of best practices approach. He was a pioneer of sociological jurisprudence and pragmatism.
What I noticed in the work of the Judicature Society, and this is based on Pound, is the sense they had in 1961 and 1962 that a merit selection process could work because one could then pick the “best” man to be a judge.
Although many people today favor merit selection over the way Pennsylvania picks judges now—partisan elections—this notion of the “best” person is not as easy to advocate. We have more of a sense today that law is highly discretionary and that the difference between a Justice Scalia and a Justice Stevens has nothing much to do with competence. Their outcomes are different and both are good judges.
Something has changed since the early 1960’s. We have lost some sense of objectivity. It is no longer obvious that one could develop a science of human flourishing that would furnish standards for an enterprise like law.
The old certainties are passing away. But it may be that new scientific understandings of the human condition, and of reality in general, may reinvigorate the notion of human needs and their satisfaction. A science of the human may yet defeat deconstructive post-modernism. Hallowed Secularism is an aspect of just such a hope.