Commentary by Lowman S. Henry
In sports sitting on the bench is bad – it means someone else is in the game. But in our judicial system those sitting on the bench are the star players. The judiciary is perhaps the most powerful, most insular and most overlooked of the three branches of state government. Like the governor, Pennsylvania’s appellate court justices and judges are selected by voters in statewide elections. Unlike the executive, very little attention is paid to those elections except by party organizations and special interest groups.
Voters in the upcoming November General Election will fill seven seats on the appellate courts including one Supreme Court Justice, four Superior Court judges and two Commonwealth Court judges. There was little competition for party nominations in the primary election and, as usual, not much attention is being paid to the races even in these last few days before voters go to the polls.
Those sitting on the appellate court benches seldom get media coverage, and when they do it usually is not good. The Pennsylvania Supreme Court has been scandal scarred in recent years with one justice resigning after circulating offensive e-mails, one convicted for using her prior judicial office to campaign for the high court, and one who allegedly threatened to dish public dirt on a colleague.
This created a rare three openings on the Supreme Court in 2015. Those races were swept by Democrats reversing the GOP’s previous court majority. Special interest groups, notably labor unions, poured millions into those campaigns. Given the Democratic Party’s current fixation on so-called “redistricting reform,” the court now gives them the advantage of a friendly venue for redistricting cases which inevitable end up there.
And that is the dirty little secret of the judiciary: it is political. The legal profession spins the myth of judicial impartiality, but from the Supreme Court of the United States on down the political affiliation and ideology of those sitting on the bench plays a big role in the decisions they render.
Generally speaking the selection or election of justices and judges boils down to two types of candidates: judicial activists who like to legislate from the bench and bring about “social justice,” or strict constructionists who interpret and apply the law rather than make the law.
Pennsylvania has seen its share of judicial activism. State Senator David Argall (R-Schuylkill) compiled a list of laws passed by the General Assembly and signed into law by the governor that have been overturned by the courts. Those laws run the gamut from how gaming tax revenue is distributed, to amendments to Megan’s Law, to voter ID, to grandparent custody arrangements.
Some of the cases overturned are more political than others. The voter ID case was especially politically charged as were cases involving Second Amendment gun rights. The bottom line, however is that the courts have the power to undo what is done by the legislature and governor. Some would argue – with some merit – that is the role of the judiciary. Our Founding Father’s wanted three co-equal branches of government to provide a system of checks and balances. But often the courts go too far and legislate rather than adjudicate.
In addition to those running for election, two justices of the Supreme Court and one Superior Court judge are up for retention. In an effort to mask the partisanship of the judiciary justices and judges stand for retention rather than for re-election. This means voters get no opportunity to consider other candidates for the seats, only cast a yes or no vote on whether the incumbents should get new ten-year terms. It is rare for a jurist to lose a retention election. The only Supreme Court Justice to do so was Russell Nigro in 2005. That defeat resulted from voter backlash in the wake of the middle-of-the night pay raise fiasco.
By and large our judicial system works well. But it is dangerous for voters to fall for the lie that the judiciary is insulated from or above the influence of politics and personal ideology. For that reason voters need to pay close attention to the retention elections and to the candidates for the seven appellate court seats up for election this year.
(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is email@example.com.)
Permission to reprint is granted provided author and affiliation are cited.