According to knowledgeable sources in the Pennsylvania legal community, Governor Tom Corbett has not yet made any moves to fill the vacancy on the Pennsylvania Supreme Court even though former Justice Joan Orie Melvin’s resignation became official last Wednesday and the former justice is set to be sentenced for political corruption Tuesday.
Sources also told The Legal that there is even a possibility that Corbett may not make any nomination to fill the vacancy because the governor is focusing on other pressing political issues like the budget, the possible expansion of eligibility for Medicaid, and the privatization of the Pennsylvania Liquor Control Board.
One source familiar with the Corbett administration said, "I can tell you with relative certainty there’s minimal chance anything will happen before the budget. I don’t think it’s possible." The state budget is supposed to be passed into law by June 30.
There’s a "very real possibility" Corbett will choose not to nominate anyone, the same source said.
Corbett has 90 days starting from Orie Melvin’s resignation to submit a nominee for confirmation by two-thirds of the state Senate. A nominee would serve until January 5, 2016, and a new justice would be elected in November 2015.
"Governor Corbett is carefully considering who would be the most qualified person for the highest court in our commonwealth," said Janet Kelley, deputy director of communications for Corbett.
State Senator Daylin Leach, D-Montgomery, minority chair of the Senate Judiciary Committee, said that it would be "odd" if Corbett made no nomination at all, but that the Senate Democrats have not yet heard from the governor on any candidates. Republicans control the upper house but do not have enough party members to muster two-thirds on their own. The Senate Democratic leadership has stated that a more moderate nominee from Corbett is necessary in order to garner their party support.
"I’m like a high school boy with a crush waiting by the phone," Leach said.
If Corbett does not make a nomination, it remains an open question if the Supreme Court would do so on its own.
Members of the Supreme Court have differed on whether the court would appoint an interim justice on its own. Justice J. Michael Eakin has commented that while he thinks the high court has the power to appoint an interim justice, he does not think the court will do it out of respect for the separation of powers between the branches of government. In contrast, Chief Justice Ronald D. Castille has said the court would consider appointing a senior judge.
Leach sent Corbett a list of names of Republican judges that he developed after canvassing people on judges they would feel comfortable arguing cases in front of.
The judges are: Superior Court Judge Cheryl Lynn Allen, Superior Court President Judge Correale F. Stevens, Delaware County Court of Common Pleas Judge Kathrynann Durham, Montgomery County Court of Common Pleas Judge Thomas Branca and Lackawanna County Court of Common Pleas Judge Carmen Minora.
Because the judges have already gained the support of party officials and voters, they have "instant credibility," Leach said.
Leach said there was no reason to not have a constructive process between his caucus and the governor, but the Senate Democrats have not heard from the governor in any incarnation, including on the list of names Leach sent. Perhaps Corbett prefers communications through "semaphore flags or the Ouija board," Leach said.
Stevens said that he is "very humbled and appreciative of [Leach's] kind words."
Separately, Stevens said that there’s an unfair perception that the court is tied evenly between three Republicans and three Democrats.
Stevens said he has served on the Superior Court with Justices Thomas G. Saylor, Eakin, Debra Todd and Seamus P. McCaffery and that he knows Castille and Justice Max Baer well and that in the 15 years he has been on the Superior Court he has never heard "a judge say this is a Republican issue or this is a Democratic issue. If there are any 3-3 decisions on the court, to me, it was based on philosophy."
One’s party line does not mean that one is going to "magically vote along party lines" on court cases, Stevens said.
Minora said he would be honored to be considered, but that he has heard nothing official.
Allen, Branca and Durham did not respond to requests for comment.
Sources said that some Republican names that are being floated as potential candidates are not certain candidates but are out there because of their close association with the Corbett administration.
Some of the names include Michael Krancer, former secretary of the state Department of Environmental Protection; Stephen Aichele, Corbett’s chief of staff; and William R. Sasso, chairman of Stradley Ronon Stevens & Young’s management committee.
Krancer, who ran unsuccessfully for the Supreme Court in 2007, said it is an honor to be a name mentioned as a possible nominee.
If Corbett asked him to consider being nominated, Krancer said he would respond affirmatively.
"When a chief executive asks you to do something, it’s something that is incumbent upon you as a duty to do," he said.
There are many important issues being considered by the Supreme Court, Krancer said, like legislative reapportionment, the state’s voter identification law, and Act 13 issues like whether the state can pre-empt local ordinances regarding natural-gas drilling.
Aichele declined comment.
Sasso has previously told The Legal that he thinks there are many others who would benefit the court more.
Bruce Castor, a Montgomery County commissioner and a potential challenger for Corbett in the Republican primary, was named by The Philadelphia Public Record as a possible nominee. "Appointing Castor to the Supreme Court vacancy might reduce the chances to nil of that primary challenge," the paper said.
Castor said that he had heard talk of Corbett nominating him to the Supreme Court but added that he could not think of any scenario in which that would happen. "It would look too bad for him to remove a primary challenger by appointing him to the Supreme Court," Castor said. But Castor said that he always has considered himself a man of law first and would accept such an appointment. Castor also said that his law firm partners at Elliott Greenleaf and his wife would support him challenging Corbett in the primary, and that he is close to deciding whether he will run.
Other names that have been floated from the Senate Democratic caucus include Mark Aronchick, of Hangley Aronchick Segal Pudlin & Schiller and a former Philadelphia city solicitor; Steve Chanenson, a former federal prosecutor and a law school professor at Villanova University School of Law; Renee Cardwell Hughes, a former Philadelphia Court of Common Pleas judge and CEO of the American Red Cross of Southeastern Pennsylvania; Linda Kelly, who was appointed attorney general after Corbett became governor; and Allegheny County Court of Common Pleas Judge Jeffrey Manning.
Aronchick declined comment. Chanenson, Hughes and Manning did not respond to requests for comment. Kelly could not be reached for comment.
One political observer said that because the Supreme Court slot was held by a woman, that Corbett might be inclined to nominate a woman as an interim justice, especially to avoid negative political play with female voters in his re-election cycle.
Names being floated for an interim justice to be appointed by the court have included William Lamb of Lamb McErlane and Superior Court Senior Judge James J. Fitzgerald III. Both have already served as interim justices on the court. 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.