Republicans Move To Remake Court After Gerrymandering Case

Jun 18, 2018

After the Pennsylvania Supreme Court's Democratic majority threw out the Republican-drawn map of congressional districts as an unconstitutional gerrymander, Republicans raised talk of impeaching Democratic justices.

Calls for impeachment even came from senior Republican Party officials.

That talk receded, but Republicans have brought forward another plan that could limit the lifespan of the court's Democratic majority: changing the state's constitution to elect appellate court judges in districts, rather than in statewide elections.

Whether to move the idea farther down the path of amending the constitution — and dramatically reorganize a separate branch of government — is before the state Legislature in the final days of June, as Democratic Gov. Tom Wolf and legislative leaders are trying to assemble a new fiscal-year budget.

It escaped nobody's attention that Republicans took a shot at remaking the court within months of the gerrymandering decision that had left them worried about how the court might rule in the future on a pending public school-funding case.

"If there was a discussion of it before that, they weren't having it where I was within earshot," said Rep. Mark Gillen, R-Berks, who opposes the idea.

The bill passed the Republican-controlled Senate on Wednesday, 35-14, on a near-party-line basis, blindsiding Democrats who called it a scheme to gerrymander the courts. Because the bill seeks to amend the constitution, it requires passage twice in both the House and Senate before it can go before voters in a statewide referendum. That could happen as early as next year if the Republican-controlled House goes along. It does not require approval from the governor to get on the ballot.

The idea comes with a public policy argument.

Four other states elect appellate court judges by district in partisan or nonpartisan races to a first term, according to information from the National Center for State Courts.

Such elections could provide geographical diversity to the court and drive up voter turnout if candidates live closer to the voters, Republicans contend. And it would address long-standing Republican complaints that candidates from the Philadelphia and Pittsburgh regions win a disproportionate share of statewide judicial elections.

Right now, the 10-year terms for Pennsylvania's seven Supreme Court seats, 15 Superior Court seats and nine Commonwealth Court seats are decided on statewide ballots. After that, they face an up-or-down retention vote without an opponent to secure a second term.

Pennsylvania is like 20 other states where high court justices must win an election to get on the court. In most states, they are appointed, although they may later face a retention election.

The high court currently has its biggest Democratic majority in at least two decades, at 5-2. All five Democrats hail from Philadelphia or Pittsburgh and, while details of a transition would be left to lawmakers and the governor, carving the court's seats into districts could end the careers of several Democratic justices.

Pennsylvania's chief Supreme Court justice, Thomas Saylor, a Republican, declined comment.

The measure, however, lacks support from several ex-justices and prominent legal advocacy groups.

The Pennsylvania Bar Association has long backed changing the constitution to adopt an appointment process for the selection of appellate judges based on experience, integrity and temperament. Pennsylvanians for Modern Courts supports an appointment process as an alternative to elections that it views as dangerously bent by big campaign donations.

"It makes a bad situation worse," said CEO Maida Milone. "It sort of creates a chock-a-block system where each region feels that it deserves to be represented on the bench. ... That's not the role of a judge at a statewide appellate level."

The Pennsylvania Association for Justice — a trade association of civil litigators whose members include prominent campaign donors — prefers the current system of statewide elections, rather than elections in districts where the organization's president, Lisa Benzie, said local politics could impose an outsized influence over the seat-holder.

Four former high court justices — Democrat Stephen Zappala and Republicans Ronald Castille, William Lamb and Sandra Schultz Newman — do not like the idea.

Lamb supports an appointment process, followed by a retention election to win another term. Newman said the idea would kill the value of running statewide and learning about the state and the people who live in it.

Castille and Zappala said justices would feel beholden to rule favorably for their districts if they want to win another term, while running before voters statewide offers more cushion to make decisions that might be legally sound, but unpopular in some quarters.

"It would destroy the judiciary," Zappala said.