Pennsylvania’s Awful Plan to Gerrymander Judgeships

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Not content with a gerrymandered state legislatures and gerrymandered congressional districts, Pennsylvania Republicans are now moving to gerrymander judicial elections in the state — not only for local trial judges, but up to and including the state supreme court.

It’s a terrible prospect, especially in the light of the state’s legal fight over the 2020 presidential election. And it points to a deeper problem, one that plagues many state judiciaries: Electing judges is a terrible idea.

Born in the nineteenth century as a reform mechanism, the practice of electing judges has outlived its usefulness. In our current era of dangerous Trumpian populism, it is clearer than ever that we want judges to be sober, reasonable, and immune from the political pressures of the moment.

Judicial elections come in three flavors: partisan elections, which 18 states use; non-partisan elections, found in 21 states; and retention elections after appointment, used in 21 states, several overlapping with the other two models. Only seven states have no judicial elections of any kind.

At the most basic level, the idea of electing judges — which almost no other country on earth does — is based on the goal of making judges responsible to the public. The leading history of judicial elections, by Professor Jed Shugerman, tells the complicated story of how we got here. Some reformers worried that judges would be chosen as patronage appointments and therefore beholden to the governors who appointed them. Others feared judges unaccountable to the public would do the bidding of wealthy elites, a phenomenon known as judicial capture.

Those fears still exist, but judicial elections don’t address them. Today, elected judges are more likely to be “captured” by monied interests than appointed ones. And the deeper problem with electing judges is that any judge who needs to run for office, whether in a partisan or non-partisan election, needs to be responsive to public pressure. Even being subject to recall compels judges to worry about public reaction before issuing a controversial decision.

This reality undermines the principle of the rule of law, also sometimes called the principle of liberal legality: Legal decisions should be insulated from politics to the extent that is humanly possible. We don’t have to be naïve and imagine that human judges are immune from political values and beliefs. But we can protect judges from the political incentives that come from having to run for office.

To be sure, if you think you can consistently push judges to follow your policy preferences, you might prefer partisan judges, notwithstanding rule-of-law values. And in theory, both sides of the political aisle should have equal capacity to influence the judiciary. In our present reality, however, that capacity lies much more with conservative-populist extremism than with progressives. Partly that’s a result of gerrymandering that empowers Republicans more than Democrats, as in Pennsylvania. More fundamentally, though, it’s because populism in the Trump era has come to dominate the Republican base more than the Democratic base.

But regardless of which side has the upper hand, a partisan judiciary is not something any of us should want. Imagine if elected state judges in Pennsylvania had politically resembled the elected state legislature there. Instead of the state supreme court rejecting Donald Trump’s legally preposterous efforts to overturn the Pennsylvania vote, the court might have overruled the will of the voters to hand a victory to the defeated president.

The upshot is that, when the stakes are highest — as in the aftermath of an election — we should not want populist politics to influence courts. What we need most in such moments are insulated, independent judges.

That empowers elites, to be sure — like federal judges and like the justices of the Supreme Court. But those judges and justices did very well in the 2020 election cases, with Trump’s appointees showing no personal allegiance to him or to his movement. You can thank God for that — or you can thank life tenure. Once confirmed, they owed Trump exactly nothing.

An independent, insulated judiciary carries risks. Its benefits, however, exceed the risks of a politically accountable judiciary. We narrowly escaped a president’s efforts to overturn a democratic election. Judges helped. The more independent they are, the better they can protect the democratic system.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2021 Bloomberg L.P.

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