A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. The appointment shall be with the advice and consent of two-thirds of the members elected to the Senate …If it wasn't for that "advice and consent" clause giving the state Senate the final say on judicial nominees, Pennsylvania would have a full complement of seven justices on the state Supreme Court and three fewer vacancies on appellate courts.
— Article V, Section 13, Paragraph (b) of the Pennsylvania Constitution
But the Pennsylvania Senate rejected all four court nominees by Gov. Ed Rendell on Wednesday by a vote of 26-24, with three Republicans joining the 21 Democrats. (Republicans hold a 29-21 majority in the Senate.)
The three defectors — Sens. Stewart Greenleaf of Montgomery County, John Eichelberger of Blair County and Jeffrey Piccola of Dauphin County — didn't really matter because of the two-thirds rule in the Constitution.
The GOP smackdown of Rendell's nominees came despite a plea by Chief Justice Ronald D. Castille, a Republican, to fill the vacancies immediately. Castille fears that a six-member Supreme Court could end up with a 3-3 tie on major cases.
The reason the Republican majority gave for rejecting Rendell's nominees was that they were tired of seeing middle-aged white guys from Philadelphia and Pittsburgh sitting on Pennsylvania courts. The four Rendell picks were white men — three from Philadelphia and one from Pittsburgh.
Senate Majority Leader Dominic Pileggi, R-Delaware County, told The Associated Press that Rendell broke established practice and his constitutional duty when he did not take the advice of the Senate GOP on the nominees.
"The governor has chosen to ignore the constitutional directive that he make judicial nominations with the advice and consent of the Senate," Pileggi said in comments on the Senate floor reported by the wire service.
The Senate wants to see some diversity in the courts, Pileggi said. In other words, more women and minorities, and some lawyers from outside Philadelphia and Pittsburgh should be serving on the state's appeals courts.
Both sides make a good case. The state courts should be at full strength (and the appointments are only until the next judicial elections in 2009, with newly elected judges taking office in 2010).
The GOP argument about more diversity is also a good one. The courts are full of politically connected lawyers from big law firms in Philadelphia and Pittsburgh. Last time I checked there were 65 other counties in Pennsylvania and there’s bound to be a decent lawyer or two to pick from the rest of the state.
But the showdown comes down to a political smackdown of Gov. Ed Rendell by the Senate Republicans. They rejected his nominees because they could.
Rendell is a lame duck who is losing political strength every day he is in office during his second term. Republicans flexed their muscles. They kicked sand in Rendell's face … and he can't do anything about it.