An article by Spotlight PA, published last week by LNP | LancasterOnline, examined the process by which judicial vacancies are filled in Pennsylvania. Angela Couloumbis of Spotlight PA explained that when “judges retire before their terms expire, the governor selects replacements, which the state Senate then must confirm by a two-thirds vote. That’s when politics can dominate. The process unfolds almost entirely in secret, making it hard to determine if the most qualified applicants get the jobs.” Spotlight PA is an independent, nonpartisan newsroom powered by The Philadelphia Inquirer in partnership with The Caucus, an LNP Media Group watchdog publication, and Pittsburgh Post-Gazette and PennLive/The Patriot-News. LNP’s Paula Knudsen contributed to this Spotlight PA report.
Usually, the process by which judicial vacancies are filled is carried out with little fanfare. And, alarmingly, with little public notice.
We criticized this process before when, in 2018, Republican state Sens. Ryan Aument and Scott Martin recommended Lancaster County District Attorney Craig Stedman for a vacancy on the county Court of Common Pleas. The vacancy ultimately went unfilled, and last month, Stedman was elected to the county bench. But as we noted at the time, the process is ripe for inside deals and horse-trading, as the Senate and the governor can use judicial vacancies to get what they want in service of their political agendas.
“We need to take politics out of this process,” we wrote then, and still firmly believe.
The process is being questioned again, Spotlight PA reported, because of Drew Crompton, “the top lawyer, adviser and strategist to the top Republican in the state Senate.” Crompton’s political sway has earned him the moniker, the “51st senator.”
Crompton has been nominated to fill a Commonwealth Court post that would end in 2021, after which he would be well placed to run for a full 10-year term on that appellate court — a pretty sweet setup.
Here’s the controversy: Crompton is the person with whom Democratic Gov. Tom Wolf “must strike deals to advance his legislative platform,” Spotlight PA reported.
Crompton was among the judicial nominations made after “weeks of political negotiations and horse-trading between legislative leaders and the governor that occurred behind closed doors, with scarce, if any, public input,” Spotlight PA noted. “By the time Wolf sent the names, the deal had been cut, the handshakes made, and a vote on them, expected in the next few weeks, will likely be ceremonial.”
Crompton contends that his appointment is not uniquely political. Therein lies the rub.
As Spotlight PA noted, “Wolf has appointed lawyers who have worked for his administration to judicial posts.”
So, apparently, we’re supposed to be OK with this because it happens all the time.
To be honest, we really can’t blame Wolf or Crompton or the Senate Republicans backing him for using a judicial vacancy to do some political deal-making.
But we can question why they haven’t sought to remedy a process that only adds to Harrisburg’s reputation for secrecy and sketchy deal-making.
Consider Spotlight PA’s reporting:
“Wolf’s office has declined to say how many people applied for the Commonwealth Court vacancy or the other openings in county courts across the state. Applicants were vetted by an advisory committee that answers to the governor, but it’s unclear who sits on it, which applicants it recommended or if it even made recommendations.” (The italics are ours.)
The Caucus filed a public records request in October, seeking the applications for the Commonwealth Court seat, but the governor’s office declined to release the information. So The Caucus appealed, and last month, the Pennsylvania Office of Open Records ruled that the administration needed to make the documents public, with redactions for personal information. Wolf’s office is considering whether to appeal.
It should not. The governor has made transparency a core value of his administration. He should hew to that value now.
And if, as his spokesman J.J. Abbott told Spotlight PA, the package of judicial nominations was “negotiated on its own,” rather than as part of any deal, the governor should have nothing to fear from making the judicial applications public.
Doesn’t ‘sit well’
The reality is, as Spotlight PA explained, that names of possible judicial candidates are swapped by the governor and the top Republican and Democratic leaders in the Senate, “who can make or break a nomination.” Consideration is “given not just to nominees’ resumes, but also their political affiliation.”
First-term Sen. Katie Muth, D-Montgomery, told Spotlight PA: “It amazes me that this is the process we’re using to choose judges.”
She believes the process benefits the “well-connected and privileged,” and she’s right, of course.
Spotlight PA examined a deal that was being negotiated to appoint a Republican to a vacancy on the Court of Common Pleas in Delaware County. Sen. Tim Kearney, a first-term Democrat who represents that area, said Republicans pushed for their choice in the face of historic losses to Democrats in county elections last month.
Kearney, whose father served as a judge, said given those election results he couldn’t “in good conscience” support the deal. The overall process, he said, also doesn’t “sit well” with him.
It doesn’t sit well with us, either.
We’ve argued repeatedly for merit selection, rather than election, of judges. It makes no sense, in our view, for judges to run as political partisans for positions that are supposed to be strictly apolitical.
State Rep. Bryan Cutler, a Republican from Peach Bottom, long has favored replacing statewide judicial elections with a process involving a 13-member nominating commission. That commission would consist of five gubernatorial appointees and eight appointed by the majority and minority leaders of the Legislature — with restrictions on the number of lawyers and the number of members from the same county and party. Elected or appointed public officials, employees of the commonwealth and political party officials would be barred from serving on that committee.
When a judicial seat opens on an appellate court, the panel would give the governor a list of five nominees from which to choose. At least 10 of the panel’s 13 members would have to approve of the list, and the Senate would have to confirm the governor’s final selection by a two-thirds supermajority.
Cutler is now the House majority leader. He still favors merit selection of judges. In a Sept. 15 Sunday LNP op-ed, Cutler wrote, “The residents of Pennsylvania expect the courts to be filled by members of the bar with the highest qualifications, not those with the best political skills. ... Even the perception that a judge is taking direction from something (or someone) other than the rule of law can be detrimental to his or her positions.”
We couldn’t agree more. And we hope Cutler keeps pressing for merit selection of judges. Because when judicial positions are viewed as bargaining chips, and deals for judgeships are made in secret, the public trust in judicial impartiality is seriously diminished.