Former Governor Tom Corbett and former U.S. District Court Judge Robert Cindrich recently appeared at a forum where they maintained that criticism of the judiciary, including threats of impeachment, constitutes a “constitutional crisis.”
Unspecified violence against the judiciary was the impetus for their remarks. To be clear, violence is never acceptable. Neither are threats of violence, such as those perpetrated against U.S. Supreme Court Justice Brett Cavanaugh, acceptable.
Corbett and Cindrich are to be lauded for their stand against violence, but their linkage of violent acts to policy disagreements with court rulings is an effort to perpetuate the aura of superiority with which the judiciary has historically cloaked itself.
Far from being in a constitutional crisis, the American public is finally seeing the judiciary for what it is: as subject to political bias as are the legislative and executive branches of government. As this becomes more readily apparent, judicial apologists are scrambling to protect their image of somehow being above the fray.
We have seen a surge in judicial activism at both the federal and state levels. The number of federal judges injecting themselves into the policy actions of the Trump Administration has spiked far above those which constrained previous administrations.
Those who disagree with the Trump Administration judge shop for a venue that will be sympathetic to their cause. Media reports dutifully detail which president appointed the judge. More often than not, that presages the ruling that will be handed down from the bench.
Gov. Corbett maintains that impeaching judges because politicians disagree with their rulings is wrong. However, federal judges are appointed for life. When they stray into overt judicial activism, we the people have no other recourse.
Here in Pennsylvania, judges and justices serve 10-year terms. In theory, this is intended to enable them to issue rulings based on the Constitution and statutory law. That, however, is not always the case. Judges and justices then benefit from another procedure, which is not accorded to the other two branches of government, by standing for a yes or no retention vote rather than for re-election.
Clearly, our supposedly co-equal branches of government are not co-equal.
If a governor or state legislator takes actions of which the voters disagree, we get the opportunity every two or four years to vote them out of office. Not so when it comes to judges and justices. We often must wait years to express our will at the ballot box — and then face a yes or no retention system that has only ever seen one justice denied a new ten-year term.
Case in point is the Pennsylvania Supreme Court. During the COVID-19 pandemic then then-Gov. Tom Wolf took actions that clearly exceeded his constitutional powers. At every opportunity, the high court ruled in his favor. Their actions were so egregious that voters overwhelmingly approved amendments to the state constitution to ensure our freedoms would not be so violated in the future.
But voters had no immediate recourse against the justices who had infringed upon our rights. Those justices then further trampled the state constitution by stealing from the state legislature the process of drawing congressional district lines, hiring a Left-wing college professor from California to do the job, and then instituting the district lines by judicial fiat.
Again, voters had no immediate recourse.
But next month, three of those justices must stand for retention. The retention elections are getting more attention than usual because of the wayward behavior of the justices. But voters are still not allowed to choose between them and other candidates.
If any of the justices are denied retention, their seats on the court will temporarily be filled by gubernatorial appointment with confirmation by the state Senate. Voters won’t get the opportunity to hear from and vote for candidates until the 2027 elections.
Contrary to the assertions of Corbett and Cindrich, criticism of and debate over the rulings of judges and justices is not only not a problem, it is a long-overdue spotlight being placed on a branch of government that has thus far wielded unchecked autocratic power over us.
And the inability to hold judges and justices accountable is an actual threat to democracy.
Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal and American Radio Journal. His e-mail address is lhenry@lincolninstitute.org.
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