A constitutional amendment to reshape Pennsylvania’s highest courts could be on the ballot for voters to approve as early as the May primary. The Republican proposal would create judicial districts for the election of judges for the state’s appellate courts — Commonwealth, Superior, and Supreme Courts. The judges on these courts are currently elected statewide.

The amendment sparked a heated debate, with some calling the measure “judicial gerrymandering.” Is electing judges based on geography a good idea? The Inquirer asked the lawmaker who introduced the amendment and an organizer of a campaign against it to unpack their positions.

Yes: HB 38 would diversify the courts and minimize corruption

Pennsylvania is known for its chocolate, its mountains … and its many opportunities for corruption.

In the days leading up to my introduction of House Bill 38, I received the usual and expected rebuttals from mainstream journalists and Harrisburg lobbyists. I was accused of inserting gerrymandering into judicial elections and disenfranchising voters, while at the same time lectured about how “merit selection” (involving a 13-person panel) would somehow not disenfranchise them.

I can’t say I am surprised. As an outsider in Harrisburg, you can always expect pushback from special interests and the media who are always in their pocket.

Still, it makes you wonder why on earth every group of lawyers, journalists, and unions are against a bill that would seek to diversify the geographic makeup of our appellate courts. And then you remember the real problem you were seeking to solve in the first place before all of the “critics” descended: corruption.

“The current system of statewide elections for appellate court judges breeds a political class exempted from the Rule of Law.”

Rep. Russ Diamond

My bill would not just diversify the gender, demographic, or geographic makeup of our appellate courts. It would also chop at the deep-seated subversion of justice in Pennsylvania.

Corruption is not something we should tolerate or ignore. It’s an embedded weed that has deep roots and has strangled other plant roots underground along the way.

For too long, Pennsylvanians have been given a raw deal by our judicial system and have been the butt of jokes about our public officials. From House speakers, to trial court judges, to traffic court judges, to Supreme Court judges, the commonwealth has had its fair share of judicial malpractice and public corruption.

» READ MORE: Pa. could become a national outlier in how it elects appellate judges. Here’s why experts are worried.

The simple fact of the matter is that Philadelphia and Allegheny have been playing by their own rules while people like my constituents in Lebanon County suffer.

Of the most recent seven appellate court judges convicted or accused of serious crimes, four of them were from Allegheny or Philadelphia. Of the 19 judges on the Pennsylvania Superior Court, the court that decided that Speaker Bill DeWeese and Speaker John Perzel do not need to pay fines for their crimes, 12 of them are from Philadelphia or Allegheny.

You see, the current system of statewide elections for appellate court judges breeds a political class exempted from the rule of law.

Pennsylvanians for Modern Courts, the major special interest group pushing against my bill, noted in its own April 2017 study that our commonwealth “has not been a stranger to judicial scandals.” The group perceived the ethics of our higher court judges to be of such concern it issued a report in 2011 on the state’s judicial disciplinary system.

But instead of proposing a decentralization of power that could help prevent such corruption from encompassing government, Pennsylvanians for Modern Courts is proposing to move power away from the voters into the hands of a politically savvy merit selection board.

Real reform gives Pennsylvanians a fair shake instead of rigging it for the politically connected.

That’s why every special interest, media outlet, and lawyer lobbyist is against my bill. Unfortunately for them, they won’t dissuade me and other honest legislators. We will fight to get this bill approved so it becomes a ballot question, giving you a voice and opportunity to end corruption in our judicial system.

Russ Diamond represents the 102nd Legislative District in the Pennsylvania House of Representatives, serving part of Lebanon County.

No: Regional influence could impede statewide decisions on the court

There is no good reason to allow Harrisburg lawmakers to upend the way Pennsylvania voters have elected our state appellate court judges for decades — but there are many strong reasons to oppose it.

Proponents say the amendment would bring diversity to the courts. But if one looks at where judges and justices are born, as well as where they lived while rising to the bench, there is a great deal of geographic diversity right now. In fact, the most recent justice elected to the Supreme Court comes from rural Pennsylvania.

“This amendment is a direct threat to the independence of the courts required by the separation of powers.”

Kadida Kenner

Regional representation on the appellate courts is not vital to their role and could undermine it. We elect legislators by district to bring regional interests and local flavor to the legislative process. But there is no Philadelphia County or Lebanon County way to interpret the Pennsylvania Constitution. Allowing regional concerns to influence court decisions could undermine the court’s deference to the law and our constitution.

HB 38 will not bring racial diversity to our appellate court benches, either. NAACP Pennsylvania State Conference president Kenneth L. Huston, who opposes HB 38, said, “Any laws which creates gerrymandering (the practice of manipulating voting districts to benefit parties instead of people) provides less strength to your voice and choice.”

» READ MORE: After barely surviving 2020, Pa.’s democracy might not survive the Republican effort to gerrymander the court | Editorial

Electing judges in districts could also make it more difficult to put the best-qualified judges on the bench. Appellate court judges need legal experience in appellate matters and/or judicial experience to sit on these courts. Although many grew up in rural parts of the state, these jurists often worked as lawyers in the urban, commercial centers of the state where their services are most often needed.

There are few good reasons to support HB 38 so it should come as no surprise that no public policy or advocacy organization supports it. However, a diverse group of more than 125 organizations, representing several hundreds of thousands of Pennsylvanians, do oppose it for these reasons and because of one more critical issue: gerrymandering.

District election of judges and justices would allow the General Assembly to gerrymander district lines. By drawing and redrawing judicial district lines, the General Assembly could not only influence the partisan composition of the courts but select which judges and justices have an opportunity to run in retention elections. This amendment is a direct threat to the independence of the courts required by the separation of powers. Most states that elect their judges and justices do so through statewide rather than district elections precisely because they understand the importance of limiting legislative influence over the courts.

Proponents of HB 38 — almost entirely Republican legislators who are on the far-right of their party — appear to support this proposal because they have been irritated by some Supreme Court decisions. But people and legislators of every ideology and party sometimes disagree with the court’s decisions. That is how our system is designed to work.

At this moment, when we have seen dramatic examples of independent courts protecting election results from those who have unfairly attacked them, everyone — no matter their party or ideology — should continue to insist that our courts be protected from the influence of legislators. Pennsylvania appellate court judges should not be beholden to legislators or their regions — only to the constitution and the law.

Kadida Kenner is the director of campaigns for the PA Budget and Policy Center. She writes from Harrisburg.

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