Originally published by the PA Capital-Star on July 14, 2020.
Democracy is threatened from many sides. The dangers include voter ID laws; closures of polling places; gerrymandered legislative districts; and problematic voting rules, especially with regard to vote by mail—not to mention attempts by both the executive branch in Washington and the legislative branch in Harrisburg to overstep their bounds. Time and again, the independence of our court has protected our political rights and our civil rights and liberties.
Now, however, legislators in Harrisburg are taking a more indirect approach to weaken the independence of our courts.
Senate Republicans appear determined to advance an amendment to the Pennsylvania Constitution next week that would change how we elect judges to our state’s highest courts—the Supreme Court, Commonwealth Court, and Superior Court. Instead of electing all judges statewide as we do now, they propose that we elect judges in regional election districts created by the General Assembly.
This proposal would give legislators enormous power over the political makeup of the Supreme Court and other appellate courts.
And, in some cases, it would allow them to target particular justices for reprisal. The proposal would thus compromise the independence of justices and judges that has been a pride of an American political system that relies on the checks and balances between the branches of government to protect our rights, our liberties, and democracy itself.
The general problem is that district lines drawn by legislators would likely be gerrymandered—that is, drawn to ensure that one party controls a majority of seats on each court. The party that controls the Legislature would pack voters of the other party into a limited number of districts, creating a majority of districts likely to elect justices or judges from their own party.
What makes this proposal even worse, however, is that the General Assembly would have the power to target particular justices and judges for reprisal in the transition from statewide election to election by regional district and any time they were moved to redraw district lines.
Suppose, for example, that the General Assembly disapproved of a decision made by Supreme Court Justice David N. Wecht who lives in Allegheny County and is up for a retention election in 2026. The General Assembly could decide that a new judicial district would be created that year centered on Wilkes-Barre. That would, in effect, force Wecht to either retire or move to Wilkes-Barre to run for reelection.
The mere threat of changing judicial district lines in such ways would deeply damage the independence of our courts. That judicial gerrymandering threatens the independence of the courts is why a majority of the states that elect judges do so in statewide not regional districts.
The proposal to elect justices and judges in regional districts is being justified by Republicans with a series of fanciful arguments.
They say that it’s difficult to elect a geographically diverse group of justices and judges. But, look at who sits on the Pennsylvania Supreme Court today and you will see that they come from seven different counties in three different states. There is no problem with a lack of geographic diversity on our courts.
Moreover, the whole idea that geographic representation is desirable on the courts is mistaken. Legislators need to understand local as well as statewide needs. But we want justices and judges who are fair-minded and know the law.
There is no Montgomery County or Elk County way to interpret statutes or the Constitution of Pennsylvania.
Electing judges in districts can also make it more difficult to put the best qualified judges on the bench. While appellate court judges are born and raised all over the state, many do work as appellate court lawyers in the law firms located in our major cities or on local courts in those cities. That is the kind of experience we want on the appellate courts.
These justifications for electing justices and judges in regional districts are, of course, fig leaves to cover the real reasons Republicans are advancing these proposals next week: the Supreme Court recently ruled against them on their effort to bypass the Constitution to end the state of emergency and also blocked their gerrymandered congressional districts before the 2018 election.
Republican political frustration is understandable, though one answer to it is for them to stop enacting proposals that are blatantly unconstitutional.
A better answer, however, is that the Republicans should be thinking about the good of our political system as a whole, including their own long-term interests.
Republicans are not likely to control the General Assembly forever. Democrats are not likely to control the Supreme Court forever—and the Democratic court justices already exercise independent judgment rather than voting as a bloc. Someday, the shoe may be on the other foot, and Republicans may look to the courts to stop actions taken by a General Assembly controlled by Democrats.
It’s precisely because we all have that long-term interest in judicial independence that legislators should step back from the brink of changing the constitution of our state in a way that violates our principles and our traditions.