REPUBLICANS HAVE MISLED VOTERS ON JUDICIAL RETENTION

 

My next two commentaries will focus on the upcoming election. One would think that after the national election of 2024 and before the important mid-term election of 2026, that this year’s event would be of less importance. This assumption would be a major mistake for those concerned about preserving democracy in Pennsylvania and in our nation at large.

Three Pennsylvania Supreme Court Justices are up for a retention vote on November 4, Justice Christine Donohue, Justice Kevin Dougherty, and Justice David Wecht. They were all elected in 2015 as Democrats. In Washington County, Judge John DiSalle, is on our local ballot, running for retention. In 2005, he appeared on the Republican ballot and won his first term.

In a retention election, voters cast a "yes" or "no" vote on whether a judge should be granted another ten-year term. There are no opponents or party affiliation listed for these races. In place of term limits, Pennsylvania has adopted a mandatory retirement age of 75 for all members of the judiciary.

The federal court judges, including the Supreme Court, are appointed and often serve for life. In Pennsylvania, because judges are initially elected, retention elections are designed to be a non-partisan means for voters to weigh in on the overall judicial acumen and competence of members on the bench.

In late September, Republicans seeking to unseat all three Supreme Court Justices sent out a deceptive campaign flier in an effort to convince voters across the Commonwealth to vote “no” on their retention. The flyer was misleading in two respects.

First, the message on the front and back of the flyer states: “THREE NO VOTES WILL TERM LIMIT THE PA SUPREME COURT.” A term limit is a legal restriction on the number of terms an elected official can serve in a particular office. This restriction can only be applied by an amendment to the Pennsylvania Constitution.

In Pennsylvania only the highest office holders of Governor, Lieutenant Governor, Attorney General, State Treasurer, and Auditor General are subject to term limits. It is misleading to inform voters that a retention vote is somehow the same as imposing term limits.

The State Republican Party will never recommend that term limits be placed on Republican members of the Supreme Court. Their political ploy is nothing more than a deception to convince voters that it is within their power to invoke term limits. In fact, the Republican political motive is to remove Justices with whom they disagree on issues like a women’s right to choose, voting rights, workers’ rights, and access to health care.

Pennsylvania's judicial retention policy originated at the 1968 Constitutional Convention as a reform measure intended to reduce partisan political influences on the judiciary. In order to make the process as non-political as possible, the names of retention candidates appear on a separate area, at the end of the November ballot, apart from individuals running for other elective offices.

The anticipated factors for voters to consider in retaining judges were judicial performance and integrity. Length of service, former political affiliations, and political views were not to be voter considerations when the Constitutional Convention adopted a judicial retention policy.

Retention elections were adopted by Pennsylvania with the belief that most sitting judges would be retained in subsequent elections. Ten years of judicial experience is considered a priceless legal commodity. In a smaller county like Washington, each judge has gained wisdom working in the diverse areas of civil, criminal, and family court. On the Supreme Court, years of participation in complex cases is invaluable. In this year’s state retention elections, it is important for voters to know that the non-partisan Pennsylvania Bar Association has recommended all three Justices for retention.

The second Republican deception is the source of this mass mailing. The flyer states: “PAID FOR BY COMMONWEALTH PARTNERS.” An average voter would assume that Commonwealth Partners was a non-partisan reform movement seeking to limit the number of terms elected judges can serve.

In fact, Commonwealth Partners is a highly partisan Republican organization seeking to remove Democrats with whom they politically disagree. This is the partisan politics that retention elections were designed to prevent. Moreover, the Partnership is incorporated as a nonprofit, making it a so-called dark money group that is not required to reveal donors.

The chairperson of Commonwealth Partners is Matthew Brouillette, named one of the top 50 Republican influencers in Pennsylvania. Another member, Michael Turzai, is the former Republican Speaker of the Pennsylvania House of Representatives.

Why are Republicans involved in such an underhanded deception in what the state constitution intended to be a non-partisan retention process? If they are successful, the Supreme Court will be in chaos for two years with only two elected Democrats and two Republicans serving on the highest court. Until new Justices can stand for election in 2027, the court would be impotent in deciding redistricting, mid-term election law, and other issues.

According to Pa. Spotlight, “Judges normally don’t come close to losing retention, with most winning a new term by 30-plus percentage points.” But Spotlight also reports, “Scott Pressler, among Trump’s most vocal supporters in the Commonwealth has already hired 23 staffers and stated that this is a political election.”

Voters should not be fooled by Republican attempts to turn a retention election, intended to evaluate judicial performance, into a partisan effort to unseat political opponents.