Pennsylvania: After U.S. Supreme Court declines to overturn PA Supreme Court’s redistricting decisions, 12 PA House members move forward with impeachment of PA Supreme Court justices

A plan to impeach members of the Pennsylvania Supreme Court for their decision in a gerrymandering case discussed here has now become official.

Justices David N. Wecht, Debra McCloskey Todd, Christine Donohue, and Kevin M. Dougherty are all officially charged with misbehavior in office for their opinion in League of Women Voters of PA, et. al. v. The Commonwealth of PA, et. al., No. 159 MM 2017. The U.S. Supreme yesterday declined to take up a challenge in the case.

Resolutions below

HR 766 (David N. Wecht)

HR 767 (Debra McCloskey Todd)

HR 768 (Christine Donohue)

HR 769 (Kevin M. Dougherty)

UPDATE: The main author of the resolutions was quoted by The Hill as saying

“This is basically 7th grade civics class all over again, the separation of powers and the authority of the legislature,” Dush told The Hill. “The courts basically are there to interpret when there’s conflict in the law, and they don’t have any sovereignty.”

 

One thought on “Pennsylvania: After U.S. Supreme Court declines to overturn PA Supreme Court’s redistricting decisions, 12 PA House members move forward with impeachment of PA Supreme Court justices”

  1. I am a retired lawyer who worked for the National Center for State Courts from 1974 through 2013. During my work on a recent book – “The Impeachment of Chief Justice David Brock: Judicial Independence and Civic Populism” (2017), which I wrote with Emeritus Professor John Cerullo – I have looked at the removal of state judges by impeachment. Here are my thoughts about the impeachment bills filed against justices of the Pennsylvania Supreme Court after their recent decision on “gerrymandering.”
    There have been countless calls during our existence as a nation for judges and other government officials to be removed from office by impeachment. Whether we like it or not as judges and other court professionals, this is probably as it should be in a vibrant democracy.
    In Pennsylvania history, eleven judges have been officially impeached, and only two were convicted. In 1803, Judge Alexander Addison was convicted on charges of political partisanship, because as a member of the Federalist Party he barred Republican Judge John Lucas from participating in or contributing to the instructions or rulings of the court. But thereafter no Pennsylvania judge was ever impeached or convicted for reasons of his personal partisan politics. And after 1826, no Pennsylvania judge was impeached until 1994, when Rolf Larson was removed from office following a felony conviction.
    The impeachment of Judge Addison in 1803 was an example of deep partisan conflicts during a national struggle between Federalists and Jeffersonian Republicans. A second example of deep partisan conflict was from Arkansas in 1874, during the Reconstruction era, involving Chief Justice John McClure. A Republican and former Union officer during the Civil War, he was impeached by a legislature controlled by partisan Democrats seeking to throw off the burdens imposed by the North. There was no impeachment trial, however, because McClure’s tenure in office was dramatically terminated by the implementation schedule for a new Arkansas Constitution adopted in 1874. The Pennsylvania legislative effort in 2018 to impeach Supreme Court justices for their gerrymandering decision is yet another example of deep partisan conflict, and the outcome might be the same as those for Addison and McClure.
    Yet such an outcome would run counter to the overwhelming weight of the American law of impeachment. It is critically important to consider what Law Professor Michael J. Gerhardt argued in a 2006 Boston University Law Review article against the impeachment of judges as partisan political retaliation for “bad” decisions:
    1. The British common law of impeachment required both a bad act and a malicious intent for removal of a judge.
    2. In the period after the American Revolution and before the ratification of the U.S. Constitution, no state judges were impeached or removed for erroneous decisions.
    3. In the ratification debate, both Federalists and anti-Federalists shared the view that judges were not to be “punished for want of judgment.”
    4. Although the 1803 Pennsylvania removal of Federalist Judge Alexander Addison might be seen as sanctioning the impeachment of a judge for his personal politics, it could just as well be seen as an affirmation of judicial independence because Addison, even without malicious intent, had tried inappropriately to bar a Republican judge from performing his legitimate judicial duties.
    5. In all Pennsylvania cases other than the 1803 Addison case, state legislators have consistently agreed that simply allowing a “bad” act to serve as the basis for a judge’s removal, with no evidence of malicious intent, would allow the legislature to remove any judges with whose decisions it disagreed.
    My own research on state judge impeachments confirms the position argued by Professor Gerhardt. The idea that a judge can be validly impeached for “bad” actions in the absence of blameworthy intent has been consistently rejected at both the federal and state levels throughout American history. Surely, it is common for the critics of a judicial decision with which they disagree to argue that it is based not on the law but on the judges’ own personal political views. Yet removing a judge in Pennsylvania or elsewhere for partisan political reasons is a direct threat to judicial independence, the rule of law, and the constitutional principles underlying our democracy.

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