Why Republicans Are Right To Impeach Pennsylvania’s Rogue Supreme Court Justices Over Gerrymandering

Why Republicans Are Right To Impeach Pennsylvania’s Rogue Supreme Court Justices Over Gerrymandering

What is more in accord with the rule of law: four justices usurping the power of a co-equal branch of government, or a legislature doing exactly what the state constitution allows?
Kyle Sammin
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Last month, Pennsylvania’s Supreme Court voted 4–3 to remove the power to draw federal district lines from the legislature and keep it for themselves. Having done so, the Democratic majority on the court proceeded to draw a Democrat-friendly map just in time for the 2018 midterm elections.

They thought they had outmaneuvered the legislature, but the justices forgot that legislatures always have the final say about rogue government officials. On Tuesday, Republicans in the Pennsylvania House took the first step in exercising their constitutional power to impeach the justices and remove them from office. It was the right thing to do.

Democrats Do an End Run Around the Law

In February, I wrote about the state supreme court’s decision in League of Women Voters v. the Commonwealth of Pennsylvania. The case was a constitutional challenge to the lines the state legislature drew for federal House districts in 2011. The 2011 district lines, it must be said, were an offense to the eye and a nakedly partisan ploy to maximize Republican seats. They were also undoubtedly legal and did not violate either the state or national constitution, which is why early challenges to them were turned away.

What changed in 2017? The Democrats gained a majority on the state supreme court (in Pennsylvania, the voters elect judges). All of a sudden, the rule of law and precedent went out the window, replaced by the rule of political expediency. So the court imposed a standard on districting that they invented out of whole cloth. Never before had that court interfered in what had been universally understood to be the legislature’s job, but the Democrats needed a win so they took one, by hook or by crook.

The state constitutional provision on which the power grab balanced was the guarantee that “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Some version of this guarantee has been found in every version of the commonwealth’s constitution since 1776, but until last month no one thought it restricted the way district lines were drawn. The court’s new majority interpreted a provision guaranteeing free elections the way sore losers declare results on the playground—it’s always either “I won” or “you cheated.”

Having created the standard, the court gave an artificially brief time for the Republican legislature and Democratic governor to come together on a map that would meet it. When that didn’t happen, the court said “game over” and imposed a map of their own, further usurping the legislature’s authority. The act was so brazen that one member of the five-justice Democratic contingent, Justice Max Baer, could not bring himself to agree to it and joined the two Republicans in dissenting.

The result was a map that favored Democrats at every turn. While the rules the court invented were value-neutral on their face, rules alone cannot decide a map. Whenever the choice came up to include one township or another, the court invariably chose the one that resulted in a more Democrat-friendly map. In the end, the coup against the legislature was complete and the Democratic politicians in judges’ robes had won. Or so they thought.

Emergency Brake on Runaway Judges

There is one constitutional provision that the judges did not consider: the power of impeachment and removal from office. Pennsylvania’s constitution mirrors the federal document in this respect, requiring a majority of the House to impeach someone and a two-thirds vote in the Senate to convict. Pennsylvania Republicans, controlling 59 percent of the House and 68 percent of the Senate, are not just making noise: they have the votes to finish the job.

This has produced the predictable, if hypocritical, howls of outrage from the Left. Although the #Resistance is hell-bent on impeaching President Donald Trump for a variety of “crimes,” real or imagined, the moment they gain a majority in the federal House, they take to their fainting couches at the sight of the word “impeachment” being used against the Pennsylvania justices.

Claims that Republicans are undermining the rule of law are especially laughable. What is more in accord with the rule of law: four justices inventing a constitutional principle and usurping the power of a co-equal branch of government, or a legislature doing exactly what the state constitution gives them the power to do?

The former is hand-waving, might-makes-right, end-justifies-the-means, extralegal politics, as far outside the law as you can get while still wearing a black robe and swinging a gavel. The latter is literally following the constitution’s procedures to the letter. The rule of law is not in jeopardy here.

The Body Politic Needs Purging

The Founding Fathers of the United States and of Pennsylvania included impeachment and removal from office as a means to ensure that the legislature remains the most powerful branch. The branch closest to the people, they are elected every two years (in the state House) or four years (in the state Senate).

They also come from some of the smallest districts out of all the nation’s state legislatures—state House districts average just 60,498 people each—ensuring that Pennsylvania’s legislature is in touch with local voters. They have the most to lose from an unpopular decision, and weigh their choices with the people’s verdict in mind, unlike a state court elected statewide in off years for ten-year terms of office.

Legislatures have become hesitant to use impeachment, which explains in part how executives and the judiciary have gained power at their expense in both federal and state governments. That is not completely without reason. Impeachment is an all-or-nothing remedy for executive or judicial wrongdoing. It takes a lot of wrongdoing before the legislature will use its power. Even when it does so there are times, as in Bill Clinton’s impeachment and acquittal in 1998, where the move backfires.

But pundits should not confuse prudence with cowardice. Just because the legislature has been known to let small things slide does not mean they will consent to see themselves deprived of powers explicitly granted them in the constitution and exercised without incident for centuries. A legislature that lets its lawmaking power slip away will soon find itself a rubber stamp to power-hungry executives and judges. When they lose their power slowly, and with their own connivance—as in the rise of the administrative state—they may stay quiet. When it is ripped from them suddenly and without their consent, they will shout.

Guarding One’s Own Divided Power Checks It

This jealousy of power is what makes the separation of powers the key to continued liberty. As James Madison explained in Federalist No. 51, “the usurpations are guarded against by a division of the government into distinct and separate departments.” With each branch granted a fraction of the power of government, each has an incentive to keep that power and stop the other branches from accumulating it. Rather than trusting in our leaders to be good and self-denying, Madison and the other Founders recognized mankind’s essential nature and used it against a would-be tyrant.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

One of those auxiliary precautions is the power of impeachment. Pennsylvania’s legislature has used it before, including to remove judges from office. In 1685, the colonial legislature removed Chief Justice Nicholas More from office after charging him with “assuming to himself an unlimited and arbitrary power in his office.” (Sound familiar?)

The colony’s proprietor, William Penn, reappointed More to the bench, something the modern legislature is in its power to avoid by convicting the impeached justices and barring them from future officeholding in the state. More recently, in 1994, the legislature removed Justice Rolf Larsen from office after he was convicted on drug charges in criminal court.

Especially for those whose elections are infrequent, impeachment and conviction is the only way to enforce the rule of law.

Impeachment has been used before to remove unsuitable judges, and the legislature should not hesitate to use it to remove those who would undermine our system of divided government. Many judges, like many legislators and executives, will honor their oaths of office and stay within their constitutionally prescribed bounds. But there will always be some who violate those rules. Especially for those whose elections are infrequent, impeachment and conviction is the only way to enforce the rule of law.

The court’s action in the gerrymandering case won the approval of good-government types who wanted a favorable result no matter how they got it. But this impeachment campaign should not be about one map versus another, it should be about the principle that the legislature alone writes the laws.

To that end, Republicans should say that the new map will stay in effect for the 2018 elections regardless of the results of impeachment. With filing deadlines already passed, this is the most sensible course of action anyway. Let the clash of ideas be over principle, not partisan advantage.

The screams of outrage from the mainstream press will not stop until the thing is played out, but now the die is cast. Just by starting the process, the legislature has shown that they will resist the court’s power-grab even at the risk of losing the approval of bien-pensant liberals. But the Republicans were never going to get that approval anyway. They should stick to their principles, press on with their duty, and restore the balance of power ordained in the constitution.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.

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