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The Pennsylvania Constitution is very clear as to what should happen when there is a vacancy on the state Supreme Court

April 10, 2023 6:30 am

The Pennsylvania Judicial Center in Harrisburg. (Capital-Star file)

In failing to appoint a replacement justice for the seat vacated by the death of Chief Justice Max Baer on Sept. 30, 2022, Gov. Josh Shapiro and the Republican leaders of the state Senate have failed in their basic governance obligations. They have failed Pennsylvania.

Granted, this failure is not monumental. The Pennsylvania Supreme Court continues to function, albeit in a flawed fashion. A new justice will be elected on Nov. 7 to fill the vacant seat and will take office in January 2024. Cases that have been put off because of an even split on the court can be addressed then.

No, this failure is simply another small step in the steady, drip by drip deterioration of public life in both Pennsylvania and America. One more instance in which our divisions — or worse, our indifference — lead to a government that cannot perform its most basic functions in a competent manner.

One more step down a road the end of which is the failure of the grand American experiment in self-government.

The Pennsylvania Constitution is very clear as to what should happen when there is a vacancy on the state Supreme Court. Art. V, §13(b) provides that such a vacancy “shall be filled by the Governor.” The section then adds that the appointment “shall be with the advice and consent of two-thirds of the members” of the State Senate. 

So, first former Gov. Tom Wolf, who was in office when Chief Justice Baer died, ignored the specific constitutional obligation at least to send the name of a nominee for the court to the Senate. On Jan. 17, when he was sworn in as governor, this same constitutional obligation fell to Shapiro.

Of course, the failure here was not only that of the governor. Presumably, both Wolf and Shapiro had some discussions with the Republican Senate leadership but were unable to reach agreement on a particular nominee. Perhaps this disagreement stemmed from an inability to compromise between a Republican nominee or a Democratic nominee.

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The Pennsylvania Constitution sets a very high standard for the confirmation of a replacement jurist—a two-thirds vote. Surprisingly, this high standard has not proved difficult to meet in the past. Traditionally, the governor nominates a prestigious judge on a lower court, who promises in return not to run for the seat in the following judicial election. 

Juanita Kidd Stout and Frank J. Montemuro, Jr., were appointed to the court as interim Justices in this way. 

Nor were judges always required to pledge not to run in the subsequent election. Correale Stevens and Sallie Updyke Mundy were both appointed interim Justices without such promises. Stevens lost a Republican primary. Mundy won the subsequent election and currently serves on the court.

But now the tradition that the governor and the Senate cooperate on replacement Justices has failed. 

The impact of a continuing vacancy on the operation of the court is probably not apparent to the general citizenry. 

The most important effect is in cases with a 3-3 tie vote. The effect of a divided court is to affirm the decision of the lower court without a final ruling on the merits of the legal question at issue. The underlying matter will often be litigated again when the court has a full complement of Justices.

Close votes on the Pennsylvania Supreme Court are not unusual. This is mostly a result of the small number of Justices who sit—seven, as opposed to the nine Justices on the U.S. Supreme Court. 

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But in addition to the numbers, close votes are common because the Justices are divided in various ways. 

The most obvious division on the court is political. Currently the court has four Democrats and two Republicans. The Justices do not generally vote along Party lines, but there are politically important cases that do sometimes break down that way, at least in part. This party division was behind the 3-3 tie vote over ballot signature requirements in a case in August. That tie vote helped muddy the waters during the 2022 election over which ballots would be counted.

Because of that tie vote, this is still a contested issue.

But most 3-3 tie votes on the court involve matters that are important but technical. These cases are not at all political, but they reveal other sorts of disagreements among the Justices.

Recently, the court tied 3-3 in a case that raised the question whether a school board’s practice of challenging certain property assessments amounted to a de facto subdivision of property in violation of the uniform taxation provision of the Pennsylvania Constitution.

In that case, Justice David Wecht, among the most liberal Justices on the court, joined with the Republicans on the court, Mundy and Kevin Brobson, to affirm the decision of the lower court.

In this case, the justices simply disagreed over how to interpret the law.

There are undoubtedly many cases like this one waiting to be decided. The justices face a difficult decision. Do they issue more 3-3 decisions just to resolve the cases at hand, knowing that the underlying legal issues will continue to generate controversy and litigation, or do they just hold on to such cases until a seventh Justice joins the court? 

In the past, the justices claimed the authority to appoint justices to the court on their own. Presumably, they have already decided that this controversial practice would look like a power grab given our current contested public life. 

On the other hand, the justices undoubtedly feel an urgency to fill this vacancy that the politicians in Harrisburg do not. It would not be shocking, therefore, if the Justices acted to appoint the winner of the November judicial election to the court immediately instead of waiting for January.

As bad as it is, the real issue here is not the effect of this vacancy on the court. The real matter is that our basic law obliges our political leadership to perform a task—a simple, but important task. And they really could not be bothered to do their job. They have failed us. And in just such small ways the citizenry learns the terrible lesson that in fact America is not capable of self-government after all.      

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.