In the wake of Pennsylvania Supreme Court Justice Joan Orie Melvin’s political corruption conviction last week, attention is turning to her potential replacement as an interim justice.
And while an official vacancy has yet to open on the bench, that hasn’t stopped the legal community from trying to guess who might be tapped to fill it.
Some names that are being floated as potential candidates have close ties to the Corbett administration, which isn’t surprising since it would be Governor Tom Corbett’s appointment. Some of the names being mentioned by legal insiders include William R. Sasso, chairman of Stradley Ronon Stevens & Young’s management committee; Michael Krancer, secretary of the state Department of Environmental Protection; and Stephen Aichele, Corbett’s chief of staff. Sasso has ties to Corbett through Republican power broker Bob Asher, who is a member of Corbett’s re-election committee, sources said.
But while Sasso’s name was mentioned most often by sources The Legal spoke to, he said Monday in an emailed statement: "While several people whose opinion I respect have talked to me about it — I feel there are many others who would provide more of a benefit to the court."
Aichele could not be reached at press time.
A DEP spokesman said Monday the agency could not comment and that Krancer was unavailable.
Meanwhile, sources told The Legal that it appears that the Supreme Court itself is too divided to make an interim appointment while Orie Melvin is still suspended but before a vacancy is created.
A vacancy can only be created if Orie Melvin resigns, if the trial judge in her criminal case orders her removed from office because of a finding that Orie Melvin committed crimes of infamy, if the Court of Judicial Discipline orders her removal from office, or if the House of Representatives first impeached her and then the Senate voted to remove her after a trial in that chamber.
Once an official vacancy is created, an interim appointee would likely serve until January 2016. The appointment would be made by Corbett, with the state Senate having the power to affirm or deny confirmation.
A Department of State spokesman said that a vacancy for Orie Melvin’s seat only would likely occur within 10 months of the next judicial election. In that case, the position can only be filled by a gubernatorial appointment that must be confirmed by two-thirds of the Senate, he said. An interim appointee to the Supreme Court could serve through January 2016, the spokesman said.
A number of sources told The Legal that Corbett is likely to give the spot to someone who is allied with the administration, but who is not a politically polarizing figure.
The Senate Republicans do not control two-thirds of their chamber, so Senate Democrats would likely push to ensure that an interim nominee is one that they could support.
State Senator Daylin Leach, D-Montgomery, minority chair of the Senate Judiciary Committee, said the Senate Democrats are going to have a lot of weight in seating an interim justice. "The necessity of having Democratic support would preclude the appointment or confirmation of anyone who is perceived as being an ideologue or [having] any history of being a partisan," Leach said.
A moderate appointment would be important because there are contentious issues before the court related to fracking, elections and the privatization of the state lottery, Leach said.
Corbett would have the choice to appoint someone in consultation with the Democrats or appoint someone he wants and not have them confirmed, Leach said.
There are plenty of Republicans who are reasonable moderates, Leach said, or a moderate Democrat also could be appointed.
But while the legal community is speculating about possible appointees, many sources said that, because Orie Melvin is still technically a member of the court, it’s unlikely the Corbett administration has engaged on the issue yet and there is nothing concrete about who might get nominated.
One source familiar with the Corbett administration said the administration does not tend to deal with an issue until it’s squarely before it.
In the meantime, it appears the court itself could still appoint a temporary seventh justice until the vacancy becomes official.
Lynn Marks, of Pennsylvanians for Modern Courts, said in an email that under the state constitution, state law, case law and court rule that the Supreme Court has the authority to designate a commissioned judge or certified senior judge to sit temporarily as an interim justice.
"This has been done only one time — from January 1994 to January 1996 — when Senior Justice [Frank J.] Montemuro [Jr.] … served ‘temporarily’ by assignment of the Supreme Court in replacement of Justice [Rolf] Larsen," Marks said. "Not everyone in the legal community agrees with this."
Under Senate precedent, an interim justice appointed by Corbett and confirmed by the Senate would likely have to commit not to run for the seat in 2015, Marks said.
Names being floated for that role include William Lamb of Lamb McErlane and Superior Court Senior Judge James J. Fitzgerald III. Both have already served as interim justices on the court.
Fitzgerald declined to comment.
Lamb, meanwhile, told The Legal that while he has heard his name mentioned as a possibility and is "flattered," he has not been contacted by the court.
"I have no expectation, quite frankly, that’s going to happen," Lamb said.
Lamb did note, however, that while the court has so far declined to appoint a seventh justice since suspending Orie Melvin last May, the situation may be different now that Orie Melvin has been convicted.
"There was much more uncertainty before last week," Lamb said.
Another name floated as an interim justice when Orie Melvin’s criminal charges were first brought was Philadelphia Court of Common Pleas Judge D. Webster Keogh, who was still administrative judge in that court’s trial division at the time before his replacement at the end of 2011 as administrative judge by Philadelphia Court of Common Pleas Judge John W. Herron.
But while there remains a possibility that the court could appoint someone who has previously served as an interim justice, Robert L. Byer, head of the appellate division of Duane Morris’ trial practice group, told The Legal that, if the decision comes down to Corbett once an official vacancy opens, the governor is unlikely to base his selection on prior experience on the high court bench.
"[While] the Supreme Court would [benefit by] getting a known entity … from the governor’s standpoint, I don’t think it matters to him that much," Byer said.
Senior staff writer Gina Passarella also contributed to this report.