Judg­ing the judges in Pa.

The Southern Berks News - - OPINION - Low­man S. Henry Colum­nist Low­man Henry Low­man S. Henry is chair­man & CEO of the Lin­coln In­sti­tute of Pub­lic Opinion Re­search in Har­ris­burg and host of the weekly Lin­coln Ra­dio Jour­nal. His e-mail ad­dress is lhenry@lin­col­nis­nti­tute.org

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 Sen. 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 10-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.

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