Another problem with judicial districts: The threat of judicial extremism

Originally published by the PA Capital-Star on January 24, 2021

Those of us who have been fighting the judicial gerrymandering constitutional amendment have been focused less on the highly uncertain partisan implications of the proposal but on its implications for the balance of power among the three branches of government in our state.

We are concerned that giving the General Assembly the power to draw judicial districts will enable it to exert undue influence the courts.

And that power will be especially noticeable in the transition from our current system to a future one, during which legislators would be able to interfere with the retention elections of our sitting justices and potentially deny one of them the ability to run for reelection.

The reason that almost all the states that elect justices of the highest court do so in statewide rather than district elections is to limit the influence of the legislature on the courts.Ā Ā 

The experience of recent weeks points to another systemic problem with judicial districtsā€”the smaller the electorate the more likely that extremists will be elected. This problem has been well known to political scientists, but as partisan division has become greater in America and Pennsylvania, this problem has become more far more obvious to all.Ā 

The smaller the electoral district the more homogeneous it is likely to be both politically and demographically. The more homogenous it is, the more dominant one party is likely to be.

And the more dominant one party is, the more likely that the extremists in the party, who tend to vote at far higher ratesĀ in party primaries, will determineĀ the party nominee and thus who is elected to office. In large, heterogeneous districts, the party balance tends to be closer and both parties have a shot to win a general election. Parties that nominate extremists in large districts tend to lose general elections.Ā 

That is why both U.S.Ā and Pennsylvania senators who are elected in larger districts tend to be far less extreme than members of the House.Ā In the vote to reject the presidential electors chosen by Pennsylvania voters, 121 of 199Ā (or 72 percent) of Republican U.S. House members, including eight of nine from Pennsylvania, stood with former President Donald Trump.

The U.S.Senate vote was far differentā€”only 7 of 51 (or 13 percent)Ā of Republicans supported the challenge to the electors chosenĀ by the voters ofĀ Pennsylvania, and U.S. Sen. Pat Toomey, R-Pa., was adamant in rejecting it. Ā 

We have long seen a similar phenomenon in Pennsylvania state government.Ā In the last few years, on issues ranging from the state budget to a shale tax to raising the minimum wage, Democrats and Republicans in the Senate have been able to reach a compromise agreement only to see the extremists in the House Republican caucus block action in that body.Ā Ā 

No matter which party one belongs to, it is not in our interest to see courtsā€”and especially our highest courtā€”become even more partisan than it is today.

Far more than in a legislative body, the courts need to aim for the middle of the road, for nonpartisanship, and above all for consistency. The rule of precedentā€”stare decisisā€”is critical in interpreting constitutions and statute because a legal system only functions well when the requirements of the law are predictable and reliable.Ā 

RepublicansĀ whoĀ opposed some of the decisions of the Pennsylvania Supreme Court in recent years will complain thatĀ the courtĀ has not followed this rule.

But while they lost cases onĀ congressional gerrymandering and emergency powers, the Democratic majority on the court was not wholly unified on either case and the decisions were based on reasonable interpretations of statute and the PennsylvaniaĀ Constitution.

And those who are complaining should be careful what they wish for. There is no certaintyĀ aboutĀ controlĀ of aĀ Supreme Court electedĀ inĀ districts,Ā and we could imagine far more radical decisions emerging from a Supreme Court controlled by extremists thatĀ bothĀ RepublicansĀ andĀ Democrats might oppose.Ā Ā 

One of the most important political adages isĀ ā€œbeware unintended consequences.ā€Ā ThatĀ judicial gerrymanderingĀ might lead to judicial extremism is one that should concern us.Ā 

But there is another possibilityā€”that this consequence isĀ intendedĀ by theĀ prime sponsor of this amendment, state Rep. Russ Diamond, R-Lebanon, and his allies.

Diamond isĀ on the farā€“right edge of his caucus. HeĀ hasĀ been minimizing the danger of COVID-19,Ā thinks that mask requirements are an attack on our civil liberties,Ā andĀ almost always votes against the budget. His other big idea is toĀ institute a salesĀ taxĀ onĀ groceries and medicine.Ā Ā Ā 

IfĀ judicialĀ gerrymanderingĀ actually succeedsĀ inĀ packing most Democrats into a few court districts centered around Pittsburgh, Philly,Ā and their suburbs, Republicans in these regionsĀ would find no pathĀ to be elected to the appellate courts.Ā 

That might driveĀ Republican lawyers in these regionsā€”who are usually prominent politicalĀ activists andĀ contributorsā€”to change parties,Ā which would, in turn,Ā undermineĀ theĀ Republican Party in these regions.Ā Ā 

Those of us who believeĀ that democracy requires two vigorous, competitive partiesā€”and for years have bemoaned theĀ lackĀ ofĀ two vigorous parties inĀ Philadelphiaā€”may be concerned aboutĀ the consequencesĀ judicial gerrymanderingĀ forĀ the Republican Party in Democratic areas of the state.

But what isĀ one moreĀ bugĀ in thisĀ constitutional amendment forĀ me mightĀ actuallyĀ beĀ a feature for extremists like Diamond whoĀ want the Republican Party toĀ move further toĀ the right and are not concerned with the losing more moderate Republicans in southeastern and southwestern Pennsylvania.Ā 

Whatever the intentionsĀ of its prime sponsor, those of us who want the state to take a step back from partisan division and extremism, and who welcome vigorous party competition in every part of the state,Ā should be wary of the long-term consequences of this amendment.Ā Ā 

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