Republicans move to give themselves friendlier judges, as critics warn of a dangerously politicized court

Only two other U.S. states elect judges the way Harrisburg Republicans are suggesting. The referendum could end up on the ballot in the May primary.

The Pa. Supreme Court in Harrisburg. (Christine Baker/PennLive)

The Pa. Supreme Court in Harrisburg. (Christine Baker/PennLive)

Good government groups across Pennsylvania fear that if Harrisburg Republicans get their way in the coming legislative session, the commonwealth could end up with a high court system that is one of the most partisan in the country.

The GOP-controlled legislature is pushing an amendment that would fundamentally reshape the state’s three appellate courts — electing judges by region instead of statewide.

Kadida Kenner, with the left-leaning Pennsylvania Budget and Policy Center, said she expects it would make it harder for Democratic justices to get elected, and would improve the odds for GOP legal efforts.

“This is a way to politicize the courts,” Kenner said. “I think this undermines the independence of our courts.”

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Right now, Democrats — and big cities — dominate the Pa. Supreme Court and its rarely-changing seats. The bench is made up of five Democrats and two Republicans. Of the Democrats, four are from the Pittsburgh area and one is from Philadelphia. All are white.

Deborah Gross, who heads the nonpartisan group Pennsylvanians for Modern Courts and has long pushed for judges to be appointed based on merit, said the proposed change would make the court far too similar to the legislature.

“Those [regional] concerns would take precedence over the concerns of the entire state,” Gross said. “If they issued a decision that in some fashion could hurt the district in which they were elected, that would be a concern for them.”

Across the country, states use a variety of methods to select judges. But according to the National Center for State Courts, only two states currently use regional, partisan elections: Illinois and Louisiana.

Pennsylvania would be the third.

The amendment cleared its first hurdle in July, soon after the state Supreme Court shot down a GOP-led effort to overturn Democratic Gov. Tom Wolf’s COVID-19 restrictions.

It passed the GOP-controlled legislature with near-unanimous support from Republicans, and total opposition from Democrats. Before becoming part of the commonwealth’s constitution, it has to pass the legislature once more, then go before voters for a statewide referendum.

Referendums in Pennsylvania tend to pass more often than they fail, Kenner noted.

If the measure doesn’t hit any legislative roadblocks, it could get on the ballot for the May primary election. In order for that to happen, it would need to pass both chambers by Feb. 18 — a fast turnaround. The legislative session kicks off in January.

Before that happens, public interest groups are quickly coalescing around the goal of stopping it, from the state bar association to organized labor.

Kenner, of the Pa. Budget and Policy Center, described the forming coalition.  “We’re going to have Black Voters Matter, Asian and Pacific Islander political action groups, [gun violence prevention group] CeaseFire, other good government groups…environmental groups, and we’ll also have trial attorneys joining us,” she said.

House Majority Leaders Kerry Benninghoff (R-Centre) and Bryan Cutler (R-Lancaster) didn’t respond to requests for comment.

Amendment effort began after 2018 redistricting battle

The move to pass the amendment comes after a presidential election that saw Pennsylvania’s Democratic-controlled Supreme Court strike down several Republican lawsuits that aimed to toss out votes or invalidate Democrat Joe Biden’s victory in the commonwealth.

Backers of the proposal do cite these decisions as an example of why the courts must change, but the effort isn’t new.

“It’s not just in relation to the election,” House GOP spokesman Jason Gottesman told WHYY. “I think that the Supreme Court has shown its partisan leanings in many other topics as well, going back to redistricting of congressional seats.”

Gottesman is referring to 2018, when the Pa. Supreme Court ruled the commonwealth’s congressional maps — which had been drawn by a Republican-controlled legislature and approved by a Republican governor, under the watch of a then-Republican court — were unconstitutionally gerrymandered in Republicans’ favor.

The court ordered the legislature to redraw the map, and when lawmakers were unable to come to a consensus with Democratic Governor Tom Wolf, it commissioned a new map itself.

In the subsequent election, Democrats did indeed have a better showing, and Republicans were incensed by what they saw as overreach. They introduced the concept of judicial districts, in what many Democrats and good-government groups saw as retaliation.

Senator Ryan Aument (R-Lancaster), who spearheaded one of the first efforts to create judicial districts by adding the measure to an unrelated legislative redistricting bill, claimed at the time that “79% of our state’s population [is] underrepresented on our state’s highest court.”

“Taken all together,” Aument added, “only 15 of Pennsylvania’s 67 counties are home to an appellate court judge.”

Commonwealth Court is majority GOP, Superior is an even split

Under current law, Pennsylvania elects justices to 10-year terms on its three high courts — the Commonwealth, Superior and Supreme — through partisan, statewide elections.

After those decade-long terms are up, justices can run for yes-or-no retention elections, which they rarely lose. They often don’t leave the court until they turn 75, the mandatory retirement age.

The Democratic majority on the Supreme Court is relatively new.

Before November 2015, when three Democrats won seats, Republicans had controlled the Supreme Court since 2002.

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Gross, of Pennsylvanians for Modern Courts, noted that the Superior Court, which has a vacancy, is evenly split between the parties, while the Commonwealth Court has a 7-to-2 GOP majority.

She also pointed to regional diversity. Eight Superior members are from Philadelphia and Allegheny Counties, six are from elsewhere. Only three judges are from those two counties on the Commonwealth Court.

In Gross’s mind, a more pressing issue is an almost total lack of judges who aren’t white. She counts just one person of color on the Superior Court, and none on the others.

“I really think it’s something that this bill will not help make any progress towards,” she said.

House Minority Leader Joanna McClinton said she considers Republicans’ commitment to regional judicial elections to be a political, knee-jerk response. “They’re losing at the courts in elections, so instead of just continuing to compete the way you should, they want to take their ball and go home.”

However, she warned that fighting the amendment’s passage would be an uphill battle.

Said McClinton: “We’re going to do everything possible in the legislature while this is still pending to let everyone know, hey, this is a bad idea.”

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