The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)
I am a reliable Democratic Party voter. This includes Pennsylvania’s partisan judicial elections.
That should mean that I know how I will vote in the November election for a seat on the Pennsylvania Supreme Court.
But I don’t know how I will vote.
That is not because of the personal strengths and weaknesses of the candidates for that office—the Democrat Maria McLaughlin or the Republican Kevin Brobson. I know very little about these two candidates.
Rather, my hesitancy has to do with the behavior of the two major political parties. They have become more partisan and I am worried about the capacity of our electoral system to elect judges who will enforce the rule of law.
First, my concern about the Democratic Party. The election of three Democrats in the judicial election of 2015 led to an unusually strong 5-2 Democratic majority on the Pennsylvania Supreme Court.
That majority pushed through a series of important decisions that have been criticized as influenced by partisan considerations.
One case, in 2018, involved Republican political gerrymandering. A four-justice Democratic majority struck down the existing Congressional map, and substituted its own, in a matter of weeks.
This unseemly rush to judgment so short-changed normal judicial process that the opinion issued did not even define the standard for unconstitutional gerrymandering. This speed enabled the new map to be used in the 2018 election and helped turn the House of Representatives blue.
Then there was the 2020 Emergency Act decision, in which a different four-Justice Democratic majority rejected a GOP concurrent resolution purporting to end Gov. Tom Wolf’s pandemic emergency declaration, ruling that the Emergency Act required presentment of the resolution to the Governor for a near-certain veto.
This decision “saved” the statute by rewriting it in the teeth of an earlier court decision specifically pointing to the power of the General Assembly to end such emergency declarations as a reason for upholding the governor’s orders in the first place.
Finally, there was the 2020 election decision extending the period for the receipt of mail-in ballots by three days. This decision, given Pennsylvania’s swing-state status, could well have determined the outcome of the presidential election. It was decided by yet a third combination of four Democratic justices.
The three-day extension was so controversial that it probably would have been reversed by the United States Supreme Court had the late votes actually decided the race.
The Democrats were not monolithic. A Democrat dissented in each instance. But they were more partisan than the two Republicans on the court, Justices Thomas Saylor and Sallie Mundy, who joined the Democrats and voted to uphold Governor Wolf’s emergency powers at the beginning of the pandemic and rejected the unfair lawsuit by U.S. Rep. Mike Kelly, R-16th District, that sought to change the rules of voting after the 2020 election was over.
Do I really want the current 5-2 Democratic majority to become 6-1?
But I have concerns at least as great with the Republican Party. It was a Republican judge on Commonwealth Court— Patricia McCullough—who granted a stay in the Kelly litigation preventing the certification of the Biden electors and justified that action by suggesting that Kelly would probably win the case on the merits.
In other words, even though Kelly and the other plaintiffs had waited until after the voting was over, McCulloch was prepared to blindside all the people who in good faith had voted by mail and throw out their votes.
Fortunately, the Pennsylvania Supreme Court held, unanimously on this point, that the untimeliness of Kelly’s lawsuit precluded any ruling on the merits, thus allowing the Biden electors to be certified.
In addition to that ruling, the Republican majority in the General Assembly continues to insist that there was election fraud in the 2020 election— former President Donald Trump’s big lie—and has now subpoenaed personal information on potentially millions of voters, including Social Security numbers, in an increasingly desperate effort to cast doubt on the fairness of Pennsylvania’s election system.
Do I really want to vote for a Republican, who will then decide future Pennsylvania election fraud cases?
Simply put, I don’t trust the Democrats and I am afraid of the Republicans.
The job of the candidates is to convince me, and others similarly concerned, that they will be reasonable and impartial without regard for the wishes of the parties and their bases.
How can the candidates do this?
In the case of the Democratic candidate, this means speaking candidly about the problem of perceived partisanship on the Court and the poisoned relationship this has created with the GOP majority in the General Assembly.
In the case of the Republican candidate, this means plainly acknowledging that the 2020 election was fair—that there was no fraud.
Nothing in judicial ethics prevents the candidates from doing this. It is the media’s job to put these questions to the candidates. If a candidate refuses to discuss these issues, that will determine my vote.
The problem of judicial partisanship is crucial in this election because the Pennsylvania Supreme Court will face two highly divisive issues in the near future that will test the court’s commitment to the rule of law.
A lawsuit has already been filed reviving the Kelly challenge to Pennsylvania’s mail-in voting law. This lawsuit has been filed before the next election and will therefore be decided on the merits. There was always a good argument that Kelly was right that the Pennsylvania Constitution prohibits no-excuse mail-in voting, the unfairness of his own untimely lawsuit notwithstanding.
The court will have to decide this difficult issue without appearing to vote along party lines.
Then there is the issue of abortion. It now seems likely that Roe v. Wade will not survive in anything like its current state. That means the abortion decision will be made by state legislatures and ultimately by state supreme courts.
Those state courts will have three options under their own state constitutions. They could find legal protection for the right to abortion; they could hold that their state constitutions are silent on the matter, or they could find a protection for unborn life. All these decisions are possible.
Pennsylvania does not have much precedent on the subject of abortion. Therefore, the Justices will face pressure to vote the way their political party wishes. They must resist such pressure and try to vote in accordance with their best judgments on the law.
It is not easy to render impartial judgments.
McLaughlin and Brobson must demonstrate in this election campaign that they can and will do so.
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. His forthcoming book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” will be published in October. His opinions do not represent the position of Duquesne University Law School.
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