Pennsylvania voters get a blessed opportunity to start cleaning up the state’s train wreck of a Supreme Court on Tuesday, when they’ll fill three of seven seats on the high court. This is a huge election, one that could have far-reaching consequences for everything from school funding, to gun control to the political balance of power in Harrisburg.
Theoretically, judges are not partisan actors. But in the real world, a judge’s party affiliation often telegraphs how they’ll rule on a wide array of politically-charged issues. That’s even more true in a state, like Pennsylvania, that elects its judges.
Right now, the court is comprised of three Republicans and two Democrats, with two empty seats. One of the sitting Republicans leaves the bench in January. It’s not an exaggeration to say the political balance of the court could be decided for a decade or more, depending on who turns out Tuesday. Justices are elected to 10-year terms, and re-election is easy. The judges chosen for the high court Tuesday will likely be with us for a very long time.
So, who’s running?
- Christine Donohue. A Superior Court Judge, “highly recommended” by the Pennsylvania Bar Association.
- Kevin M. Dougherty. Administrative Judge, Philadelphia Court of Common Pleas, “recommended” by the Bar. His brother is IBEW Local 98 boss John Dougherty, who has poured a ton of money into his campaign.
- David N. Wecht. A Superior Court Judge, “highly recommended” by the bar.
And the Republicans.
- Anne Covey. Commonwealth Court Judge, “not recommended” by the bar.
- Michael A. George. President Judge of the Adams County Court of Common Pleas, rated “recommended,” by the bar.
- Judith Olson. Superior Court Judge, rated “highly recommended” by the bar.
Those are your choices. Now, what’s at stake? So very much. Here are six top concerns, but this list could easily be much longer.
1. Whether PA goes red, blue or purple.
The party that calls the shots during redistricting — which is the once a decade mapping of legislative districts — gains an enormous long-term advantage over the other party. Having control over where borders are drawn and how populations are sliced up is huge. It can and does deliver disproportionate seats and power to the party that controls the process. In 2012, for instance, Democratic Congressional candidates narrowly won the statewide popular vote, but only claimed a quarter of the U.S. House seats up for grabs. Gerrymandering is a hell of a thing.
The State Supreme Court really only has a redistricting role in state House and Senate districts, not U.S. Congressional districts. But it’s redistricting role at the state-level is positively pivotal.
The party that controls the Supreme Court gets to appoint the chair of the state’s five member redistricting commission. The court’s vote is tie-breaking, as the other commission members are comprised of two Democrats and two Republicans. That’s a big deal.
The State Supreme Court is also the final word on redistricting maps. Pennsylvanians who take issue with the redistricting commission’s decision can sue, and the Court gets to hear and rule on those appeals.
Justices don’t always rule along partisan lines when it comes to redistricting (former GOP Chief Justice Ron Castille sided with the Court’s Democrats on the maps in 2012, for instance). But those are the exceptions. Party identification tends to be a strong predictor of how state Supreme Court justices will rule on divisive redistricting plans.
2. Gun control.
Nowhere is the extreme political divide between Philadelphia and much of the rest of Pennsylvania more evident than on the question of guns.
Philadelphia wants much stricter controls on guns. The GOP majority in the General Assembly, meanwhile, is reflexively and entirely opposed to even the most modest forms of local regulation of guns.
That dynamic generates a hell of a lot of lawsuits. Municipalities pass modest gun control ordinances, and the NRA sues. State lawmakers seek to punish municipalities for their insubordination by passing laws that make the towns ripe targets for more NRA lawsuits.
In the middle, of course, are the courts. While state courts have, for the most part, affirmed the primacy of the state legislature over cities when it comes to gun control, judges have also this year pushed back on a new state law designed to make it easier for the NRA and other gun advocacy groups to sue Pennsylvania municipalities when they attempt local gun control.
The odds are excellent that the Pennsylvania Supreme Court will be called on to settle more than one high stakes gun control question in the years ahead.
3. Education funding.
A lot of Philadelphians feel that the General Assembly has failed to “provide for the maintenance and support of a thorough and efficient system of public education,” as the Pennsylvania Constitution calls for.
But that’s not been the view of the state’s judiciary. Not so far, anyway. A year ago, an education funding lawsuit was filed by the Public Interest Law Center of Philadelphia on behalf of an array of plaintiffs. The suit asked for a court-order forcing the General Assembly to ensure access to high quality education.
But in April, a unanimous Commonwealth Court panel dismissed the suit, saying, in essence, this isn’t the court’s problem to fix. The plaintiffs appealed, and now the suit is before the Supreme Court.
The Supreme Court Justices elected next week could well determine the fate of that lawsuit.
4. Voter I.D.
The Republican-backed voter ID law was declared in violation of Pennsylvania’s constitution by a Commonwealth Court judge in 2014. Then-Gov. Corbett opted not to appeal to the state Supreme Court.
But some iteration of voter ID, or other controversial voting-related legislation, could well come before Pennsylvania’s courts in the years ahead. This isn’t a far-our possibility. Voter ID bills and related voting legislation has gone to the top courts in states such as Kansas, Arizona, Tennessee and Wisconsin, to name just a few.
5. The rule of law.
Oh yeah. That.
As politicized as Pennsylvania’s Supreme Court has been, the Court’s theoretical role is to impartially interpret the law. There are many, many cases that go before the Court that don’t have explicit left-right political implications. A lot of these cases are very, very important. The state needs credible, ethical jurists on its top bench. That seems obvious. But, well, it’s not been automatic, to say the least.
6. State pride.
Pennsylvania’s high court has been an outright embarrassment these past few years. There was Seamus McCaffery, the justice who retired after his fellow justices suspended him, owing to his involvement in a email porn scandal and his ensuing alleged browbeating of fellow Justice Michael Eakin. If Eakin’s name sounds familiar, that might be because he made headlines earlier this month over his own role in Porngate.
Before that, it was former Supreme Court Justice Joan Orie Melvin, who was found guilty on corruption charges. And the bitter, debilitating feud between McCaffery and former Chief Justice Castille. There was also Castille’s own questionable handling of the no-bid deal to build a new Family Court building in Philadelphia.
You get the idea. So go vote! The court could use the help.