Upon Further Review

Howard Bashman. Howard Bashman.

On Jan. 22, by a vote of 5-to-2, the Supreme Court of Pennsylvania held that the commonwealth’s congressional districts were unlawfully gerrymandered in violation of Pennsylvania’s Constitution. The five justices in the majority were all elected to Pennsylvania’s highest court as Democrats, while the two dissenting justices were elected to the court as Republicans. And the particular gerrymandered congressional districts at issue were imposed by Republican state legislators to advantage Republican incumbents and candidates for the U.S. House of Representatives.

Following its initial ruling, the Supreme Court of Pennsylvania has been in the national news to a degree that I have not seen equaled since I began writing this appellate-focused column way back in December 2001, more than 16 years ago. That spotlight only intensified on Feb. 19, when Pennsylvania’s highest court by a vote of 4-to-3 imposed its own newly devised congressional districts to govern the upcoming May 2018 primary election for the U.S. Congress. Once again, all four justices in the majority were elected to the court as Democrats, while the dissenters consisted of two justices elected as Republicans and one elected as a Democrat.

According to news coverage of the court-imposed congressional map, created with the assistance of a Stanford law professor who previously taught at the University of Pennsylvania Law School, the new map simultaneously evened the playing field for Democratic congressional candidates and at every turn resolved choices in a way intended to make it easier for Democratic candidates to have a better shot at being elected to the U.S. Congress.

Attacks on gerrymandering and its consequences are nothing new. Gerrymandering has a long and pernicious pedigree, which those who are currently benefiting from it argue helps to place its lawfulness beyond reasonable dispute. But although those in power, whether Democrats or Republicans, have been using gerrymandering for decades to try to perpetuate their current political advantage for as long as possible, advances in the technology and science of gerrymandering have given those now in majority control and the almost absolute ability to freeze out of political power their potential adversaries from the other political party.

In other words, in the past, efforts at gerrymandering sometimes might work and sometimes might not, but with the current advances today, gerrymandering efforts have a nearly foolproof success rate. The unfortunate consequence of those advances is that voters from the political party that is not in power face the prospects of having their votes be rendered meaningless because they find themselves dispersed among districts designed to perpetuate their powerless status. To be sure, even a minority party can elect its candidate where voter turnout from only that party is especially high, as evidenced by the recent special election of a Democratic candidate to fill a vacant U.S. Senate seat in Republican majority Alabama. But far more often, the odds play out the way that they normally are expected to in places where the latest gerrymandering science has been employed to disadvantage supporters of the party not currently in political power.

The point of this column is not to resolve or discuss at length whether gerrymandering is good or bad, although the evidence that it is bad has been growing in its persuasiveness in recent years. Instead, I am devoting the rest of today’s column to examining the reaction to the Pennsylvania Supreme Court’s rulings from those who have opposed those rulings because they will be disadvantaged by them. At least one Republican state legislator and others who support that political party have raised the prospect of seeking to impeach the four or five Pennsylvania Supreme Court justices elected to that court as Democrats based on their rulings on this matter.

In my view, it would be a huge mistake for Republican state legislators to actually initiate impeachment proceedings against Pennsylvania Supreme Court justices for having issued rulings with which the legislators disagree as a matter of political or even legal merit. The majority on the Pennsylvania Supreme Court did not simply exercise their power as a matter of political will; rather, they issued opinions explaining the legal reasoning for why, in their view, the Pennsylvania state Constitution required the result that the court has decided to reach.

Disagreement with the merits of a decision, no matter how strongly held or meritorious those disagreements may be, simply should not and cannot be a basis for impeaching appellate judges. Just as our republic somehow survived without impeachment hearings after five Republican-appointed U.S. Supreme Court justices in Bush v. Gore managed to conclude the 2000 presidential election in favor of Republican candidate George W. Bush, Pennsylvania will survive the Pennsylvania Supreme Court’s recent congressional gerrymandering decisions.

It is simply a fact of life that judges appointed to federal appellate courts by Republican presidents are more likely to reach conservative outcomes in politically tinged cases, and judges elected to state supreme courts as members of one political party or another are likewise more likely to reach a result that favors the side that once supported them. This does not mean that judges, when they are deciding politically tinged cases, are failing to act like judges in deciding the case. Rather, it is simply a function of the fact that the reason why Republicans favor one judicial approach and Democrats another is that those approaches most often result in the outcomes those political parties prefer.

Impeachment of Pennsylvania Supreme Court justices based on disagreement with their rulings would also be shortsighted. The impeachment would equate to a disenfranchisement of the voters who in November 2015 decided to elect three Democratic candidates to that court, thereby giving Pennsylvania’s highest court a 5-to-2 Democratic majority in place of the Republican majority that had existed on the court for many years leading up to that point. Moreover, should vacancies arise, the person who would have the power to nominate interim replacement justices would be Gov. Tom Wolf, himself a Democrat.

If my math is correct, the next two vacancies on the Pennsylvania Supreme Court will occur in 2021 and 2022 due to application of Pennsylvania’s new judicial mandatory retirement age of 75. Thus, Pennsylvania voters will again have the ability to decide what sort of justices they prefer, although if Republicans win both seats the court will still have a 4-to-3 Democratic majority. Another three of the justices in the majority in the Pennsylvania Supreme Court’s gerrymandering decisions will face retention elections in 2025, so if the Pennsylvania electorate remains truly disconsolate over that ruling at that point, those justices could be removed from office then. And if that prospect of removal at the ballot box in 2025 sounds extraordinarily remote and quite silly even to suggest, then perhaps any talk of impeachment now is revealed to be likewise lacking in merit.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.