G.O.P. legislators, dozens of whom supported overturning the state’s election results to aid former President Donald J. Trump, are moving to change the entire way that judges are selected in Pennsylvania, in a gambit that could tip the scales of the judiciary to favor their party, or at least elect judges more inclined to embrace Republican election challenges.
The proposal would replace the current system of statewide elections for judges with judicial districts drawn by the Republican-controlled legislature. Those districts could empower rural, predominantly conservative areas and particularly rewire the State Supreme Court, which has a 5-to-2 Democratic lean.
Democrats are now mobilizing to fight the effort, calling it a thinly veiled attempt at creating a new level of gerrymandering — an escalation of the decades-old practice of drawing congressional and state legislative districts to ensure that political power remains in one party’s hands. Democrats are marshaling grass-roots opposition, holding regular town hall events conducted over Zoom, and planning social media campaigns and call-in days to legislators, as well as an enormous voter education campaign. One group, Why Courts Matter Pennsylvania, has cut a two-minute infomercial.
Republicans in Pennsylvania have historically used gerrymandering to maintain their majority in the legislature, despite Democratic victories in statewide elections. Republicans have controlled the State House of Representatives since 2011 and the State Senate since 1993.
Current schedules for the legislature make it unlikely the Republicans could marshal their majorities in the House and Senate to pass the bill by Wednesday and put the proposal before voters on the ballot in May. Passing the bill after that date would set up a new and lengthy political war for November in this fiercely contested state.
Republicans have some history on their side: Pennsylvania voters tend to approve ballot measures.
“You should be very suspicious when you see a legislature who has been thwarted by a Supreme Court in its unconstitutional attempts to rig the democratic process then trying to rig the composition of that Supreme Court,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice.
A state House panel narrowly advanced a measure Wednesday aimed at giving the Republican-controlled legislature the power to draw districts for electing appellate court judges in Pennsylvania, a major shift away from the current statewide contests.
The majority party has made overhauling the courts a priority after a slew of unsuccessful litigation involving the administration of the 2020 election as well as the coronavirus pandemic. But critics warn the change is an attempt to exert control over the judiciary branch.
The House Judiciary Committee voted 13-12 in favor of the proposed constitutional amendment, which would affect races for state Commonwealth, Superior, and Supreme Courts. If passed by the full House and Senate by Feb. 18, it would be before voters for the May 18 primaries.
Republicans contend electing judges by district will lead to more geographic representation. A majority of the 31 appellate judges are from either Philadelphia or Allegheny County — including four of the seven Supreme Court justices — but those areas make up less than a quarter of the state’s population….
But opponents of the amendment said it would threaten judges’ ability to render statewide decisions without influence, because they would be beholden to a regional constituency and to lawmakers who could draw them out of a district if they don’t like a judge’s ruling. Lawmakers could also gerrymander the districts to ensure the judges they want are elected.
The Court in Carney v. Adams found that the plaintiff lacked standing because he was not ready and able to serve as a judge.
Amy Howe for SCOTUSBlog:
The justices start their new term on Monday, at a time when the Supreme Court is at the center of a bitter battle over President Donald Trump’s nominee to succeed Justice Ruth Bader Ginsburg, who died last month at the age of 87. If Judge Amy Coney Barrett is confirmed, it could cement a decisive conservative majority on the court for decades to come. With the ideological balance on the Supreme Court very much at the forefront of many people’s minds, it is perhaps fitting that in their first oral argument of the term the justices will consider whether a provision in the Delaware constitution that seeks to ensure bipartisanship in the state’s courts violates the U.S. Constitution.
Under the Delaware constitution, judges are appointed by the governor for 12-year terms and must be confirmed by a majority of the state senate. The state’s constitution also imposes additional limitations on the governor’s appointments. One section, known as the “bare majority” provision, directs that no more than a bare majority of the judges on the state’s five main courts can be affiliated with any one political party. Another section, known as the “major party” provision, applies to the three courts known as the “business” courts: the Delaware Supreme Court, the Court of Chancery and the Superior Court. It divides the seats on those courts between the two major political parties – currently the Democratic Party and the Republican Party.
The case before the U.S. Supreme Court on Monday, Carney v. Adams, was filed by John Adams, who became a lawyer in 2000. A registered Democrat, Adams worked as a family-law lawyer in the Delaware Department of Justice from 2003 to 20015. Adams changed his party affiliation in 2017 to Independent and decided that he wanted to serve as a judge, but he believed that he would not be able to apply for any future vacancies on the business courts because he wasn’t a Democrat or a Republican. Adams went to federal court in Delaware, where he argued that the “bare majority” and “major party” provisions violate the First Amendment to the U.S. Constitution by limiting a judicial candidate’s freedom to associate with the political party of his choice.
Jill Karofsky NYT oped:
Now, over two weeks later, we have an uptick in Covid-19 cases, especially in dense urban centers like Milwaukee and Waukesha, where few polling places were open and citizens were forced to stand in long lines to cast a ballot. It will take time to compile and analyze the data, but the number of people who voted in person and have tested positive is growing.
It’s important to note three significant facts. First, both court decisions — from the U.S. and Wisconsin Supreme Courts — are seen as being along partisan lines, with allies of Republicans refusing to delay the election. Second, because of the pandemic, the justices of neither of those courts actually met in person when discussing and voting these cases — but they forced many people who wanted to vote, to vote in person. And third, every member of the Wisconsin Supreme Court had already voted early. They weren’t putting themselves at risk.
It’s my view that these decisions were wrong on the law, and they were wrong on process. We shouldn’t legislate from the bench. There was no time for full briefs or oral arguments and no time to fully examine the issues. The U.S. Supreme Court especially erred by writing into law a postmark requirement that they didn’t have the time to think through and that caused tremendous confusion in my state.
Most observers assume these last-minute decisions not only contributed to chaos, but also weren’t respectful of the law or a deliberate process. Even if one believed that the governor’s moves to postpone the election were wrong, it was incumbent on these courts to take the time to review the situation completely — instead of granting the governor only minutes to file a response to a lawsuit the day before an election.
I find it unconscionable that Wisconsin voters were forced to choose between their safety and having their voices heard in our democracy. The right to vote is fundamental to the American creed. Courts making partisan decisions, sending people out to vote in the middle of a global pandemic, is exactly what’s wrong with a judiciary that has become too political, and I think a deliberate attempt to suppress the vote in Wisconsin.
I don’t think I’ve ever seen anything like this.
Alabama’s method of electing appellate judges does not dilute the voting power of blacks, a Montgomery federal judge ruled Wednesday in a case brought against the state by the Alabama NAACP.
The group contended that Alabama’s at-large elections of appellate judges – instead of electing the judges by districts – disenfranchises black voters and is the reason why there have been no black state appellate civil and criminal judges and only three African-American judges on the Alabama Supreme Court in the last 36 years.
What is the judicial role? Are judges mere umpires who call balls and strikes based solely on rules made by others? Or are judges lawmakers in their own right, creating laws and making public policy? The U.S. Supreme Court has just agreed to hear a case in which those questions could play a determinative role. In addition to being of great jurisprudential interest, however, the case will attract great attention from corporate lawyers, because it may call into question the validity of the judiciary of the state that dominates corporate law.
Brennan Center release.
Nearly two years after a federal trial court found that Louisiana’s use of at-large voting for electing five judges to a state court with jurisdiction over Terrebonne Parish violates the Voting Rights Act and the U.S. Constitution, the NAACP Legal Defense and Educational Fund, Inc. (LDF) applauds the court for ordering a remedy that serves as long-awaited relief for Black voters.
“This voting rights remedy will bring a 50-year old discriminatory voting practice in Louisiana to an end,” said LDF Deputy Director of Litigation Leah Aden. “Black voters in Terrebonne Parish, Louisiana have been denied an equal opportunity to elect their preferred judicial candidates for far too long – first through Louisiana’s political process, which continues to fail them, and then through the Governor and Attorney General’s defense of this discriminatory system in court since plaintiffs filed this case in 2014. Black voters in Terrebonne will continue to fight to ensure that the court order is implemented for the next state court election for all five judicial seats in 2020 and push Louisiana state officials to ensure fair electoral opportunity in Louisiana.”
Learn more about Terrebonne Parish Branch NAACP, et al. v. Edwards, et al. here.
State supreme courts, which sit at the top of state judiciaries, don’t have gender parity and don’t reflect the racial or ethnic composition of the communities they serve, according to a new report from the Brennan Center for Justice at NYU Law.
“Across the country, states’ most powerful courts are overwhelmingly white and male, unlike the communities they serve,” said Alicia Bannon, Managing Director of the Brennan Center’s Democracy Program and a coauthor of the report. “Our judicial system loses credibility with the public when the judges making the rulings don’t reflect the diversity of the people affected by those rulings. Our courts can’t function without the public’s trust.”
The authors of State Supreme Court Diversity analyzed the demographics of more than 1,600 people who served as justices in the states’ highest courts between 1960 and 2019. Among their findings for that period:
13 states have not seated a person of color as a state supreme court justice
24 states currently lack a justice of color on their state supreme court bench
White men now make up less than a third of the U.S. population but more than half (56 percent) of state supreme court justices
Women make up roughly half the U.S. population but hold 36 percent of state supreme court seats
People of color make up nearly 40 percent of the U.S. population but hold 15 percent of state supreme court seats
Over the past twenty years, state supreme courts have become less reflective of the nation’s increasingly diverse population. In 1996, there were 63 percent fewer justices of color on state high court benches than would be predicted based on their representation in the general population. In 2017, that gap was 66 percent.
In addition, the authors supplemented their data with secondary sources that analyzed the pre-1960 period. They found that 18 states have never seated a black justice on a state supreme court.
Opinion in Adams v. Delaware:
James R. Adams is a resident and member of the State
Bar of Delaware. For some time, he has expressed a desire to
be considered for a judicial position in that state. Following
the announcement of several judicial vacancies, Adams
considered applying but ultimately chose not to because the
announcement required that the candidate be a Republican.
Because Adams was neither a Republican nor a Democrat, he
concluded that any application he submitted would be futile.
Adams brings this suit against the Governor of the State
of Delaware to challenge the provision of the Delaware
Constitution that effectively limits service on state courts to
members of the Democratic and Republican parties. Adams
claims that under the Supreme Court’s precedent in Elrod v.
Burns and Branti v. Finkel, a provision that limits a judicial
candidate’s freedom to associate (or not to associate) with the
political party of his or her choice is unconstitutional. The
Governor argues that because judges are policymakers, there
are no constitutional restraints on his hiring decisions and he
should be free to choose candidates based on whether they
belong to one of the two major political parties in Delaware—
that is, whether they are Democrats or Republicans. We
disagree and conclude that judges are not policymakers
because whatever decisions judges make in any given case
relates to the case under review and not to partisan political
interests. We therefore conclude that the portions of
Delaware’s constitution that limit Adams’s ability to apply for
a judicial position while associating with the political party of
his choice violate his First Amendment rights, and we will
accordingly affirm in part and reverse in part the District
Court’s grant of summary judgment in favor of Adams.