Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)
In my commentary, I try to avoid partisanship. That is usually easy. There is plenty of blame for both political parties.
But Republicans are engaged in two initiatives, one in Washington and one in Harrisburg, that threaten to politicize the judiciary and undermine democracy. Both efforts must be resisted.
In Washington, the issue is about dishonesty in politics. In February 2016, after the death of Justice Antonin Scalia, U.S. Senate Majority Leader Mitch McConnell, R-Ky., announced that the Republican conference had decided not to consider any nominee from President Barack Obama during that election year.
This announcement came as no surprise. Scalia’s death left the Supreme Court closely divided between liberal and conservative justices. The next justice would tip that balance. McConnell could have forthrightly announced that he had no intention of cementing a liberal majority. Democrats had rejected the nomination of Robert Bork to the court years before for ideological reasons. The Republicans could justifiably do the same.
Instead, McConnell lied. He said that with an ongoing presidential election, at the time, the American people should have a voice in the next judicial selection. The next President should make the nomination. Later, he amplified the lie, calling it “a principle,” thus denying U.S. District Judge Merrick Garland, Obama’s nominee, even a hearing.
We know this was a lie because now, even later in a presidential election cycle, with Justice Ruth Bader Ginsburg’s health in serious question, McConnell has made it crystal clear that should a seat open on the Supreme Court, he will help President Donald Trump fill it.
McConnell claims the situations are different because the same party controls both the Senate and the White House, as if the American people therefore don’t deserve a choice in the next judicial nominee.
The truth then, and now, is simple: McConnell wants a legacy of conservative control on the Supreme Court.
There is nothing inherently dishonorable about that goal. Lying is dishonorable.
There is not much outrage over McConnell’s dishonesty. It is what people on both sides of the political aisle expected.
But to me, there is nothing worse than lying in political life. The worst thing that Bill Clinton did was to announce to the cameras and the American people, “I did not have sex with that woman.” The worst thing the Bush administration did was to announce that there were definitely weapons of mass destruction in Iraq when the administration did not know that.
You cannot build a healthy political life on lies. That is why Democrats in the U.S. Senate should warn any judicial nominee that the process is corrupt and that any confirmation will be regarded as illegitimate by the next Congress.
Should Democrats continue to control the U.S. House in 2021, any justice confirmed before the election should be impeached. As McConnell said in 2016, it will be a principle, not personal.
The action by the GOP in Harrisburg is even worse. The issue here is structural racism.
Two weeks ago, the Republican-Senate approved a constitutional amendment to replace statewide voting for the appellate courts with judicial districts. In the case of the Pennsylvania Supreme Court, there would be seven districts of equal population for the seven judicial seats. The bill cleared the House in 2019.
The proposed amendment must be passed again, by both the House and Senate, in the 2021-22 legislative session before it could be presented to voters on the statewide ballot, LancasterOnline reported.
As usual, this ploy comes with code words.
Sen. Judy Ward, R-Blair, said the change was about fairness to rural voters. For “rural” substitute “white.” For urban, “Black.” The Republicans are hoping that white voters will control the makeup of the Pennsylvania Supreme Court.
This proposed constitutional change comes out of legitimate Republican anger over the actions of four Democratic justices in the 2018 Congressional gerrymandering case. But the current 5-2 Democratic domination of the high court is a historical anomaly.
Not only has the court traditionally not been partisan (former Chief Justice Ronald Castille, who was elected as a Republican, regularly clashed with the Republican legislative majority in Harrisburg), the court also often swings from domination by one party to the other.
The only reason for the current imbalance is the accident that three seats on the court were decided in 2015 and all won by Democrats. The 2017 election went to the Republican candidate, Sallie Updyke Mundy.
People wonder what structural racism is. It is not a matter of ill will toward persons of color. Republicans would be horrified at the thought that they are personally prejudiced.
But they plainly intend to stuff as many Black voters as possible into two judicial districts, one surrounding Pittsburgh and one surrounding Philadelphia. In this way, white voters will dominate the other five districts and certainly will control the court.
The Republican goal is not racial. Rather, it is a Republican majority on the court. They would be happy if they could garner more Black votes. Then this judicial districting effort might not be necessary. But, as long as Blacks vote for Democratic candidates, Republicans are willing to suppress the influence of black voters on the makeup of the Pennsylvania Supreme Court.
A genuine conservative, Justice Clarence Thomas, has often said that the way to achieve racial justice in America is not by affirmative action or, in today’s terms, anti-racial initiatives. The way to achieve a non-racist society is simply to treat everyone the same.
That is precisely what the current system of statewide election of judges accomplishes. Every voter gets an equal say. Everyone gets an equal vote.
White voters have plenty of power already. We are given outsized influence nationally by the Electoral College and the makeup of the U.S. Senate. We don’t need more.
The Republicans should leave the courts alone and let the people of Pennsylvania decide every time who should serve. The way to fight structural racism is not to practice it.
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