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First, We Kill All the Judges

September 27, 2007

by Dr. G. Terry Madonna and Dr. Michael Young

"First, we kill all the lawyers!" This was the infamous scheme proposed by Shakespeare’s aptly named character, "Dick the Butcher," in the play Henry VI. The Shakespearean plan was to liquidate the legal beagles to smooth the way for medieval revolution. Butcher Dick has been recently updated by Operation Clean Sweep, a well known Pennsylvania reform group. Clean Sweep’s recipe for modern political change: "First we just vote no to all of them"--no to the retention of each of the 67 jurists that must stand for yes/no votes this November.

From Shakespeare to Clean Sweep might seem a long jump. But Clean Sweep is nothing if not bold. The mighty Shakespeare only put lawyers on his Elizabethan hit list. But Clean Sweep is cutting out the middleman. Forget the lawyers--to bring real judicial reform to Pennsylvania, the entire corpus of jurists need to go. Off with their heads--all of their heads!

Clean Sweep, arguably one of Pennsylvania’s premier reform groups, is not singing solo on this one. Several other reform organizations have signed on to the concept that a clean sweep should be more than a slogan. And so they are targeting seven Appellate Court Jurists and 60 County Trial Court Judges who will stand for retention on November 6th.

Many political observers and the Judges themselves are taking the threat seriously. They should. In 2005, Supreme Court Justice Russell Nigro was unceremoniously denied retention and his colleague, Sandra Newman, narrowly won retention by a scant four percentage points.

Moreover, the electorate seems none too friendly these days toward incumbents. Some 23 incumbent state legislators were sacked by the voters last year. And in recent polls completed at Franklin & Marshall College, Pennsylvania voters are registering a sour, cranky mood.

Nor have individual members of the state judiciary always remained above controversy. Earlier in the year, Superior Court Judge Michael Joyce resigned following his indictment for insurance fraud. Most recently, Judge Correale F. Stevens, a Superior Court Jurist, was up for retention and similarly created controversy after showing up at a political press conference aimed at advocating laws to limit illegal immigration and the "alien invasion."

These high profile lapses of judicial judgment have not been helpful to a judiciary under siege. Nevertheless, the reformers’ argument that all judges should be denied retention has been criticized as "knee jerk" and "unreasonable" in recent editorials around the State. Indeed, the State’s political institutions seem to be closing ranks to prevent what some see as a serious threat to the independence of the courts.

In the vanguard are the political parties themselves who are scrambling furiously to defend incumbent jurists and get a yes vote. Other major political groups are also rallying to support the beleaguered judges. The State AFL-CIO endorsed all seven Appeals Courts Jurists for retention, even though four of them are Republicans who were not AFL-endorsed in their initial elections.

Most remarkably, the legal establishment could become fully engaged. The Pennsylvania Bar Association is considering a more aggressive stance to support qualified judicial nominees. And several individual lawyers have begun to speak out publicly.

The sense of alarm spreading across the breadth of the State’s political community is palpable. The prospect that dozens of judges might be removed seems mind boggling, but few think it impossible. The electorate is engaged, angry, and seemingly eager to lash out its frustrations on any available targets. No prudent observer will foreclose on the possibility that Pennsylvania could be approaching a judicial armageddon.

Still, it’s too early to judge how this electoral drama will play out in November, but it’s not too early to judge the idea driving it--that reform will come if Pennsylvanians simply lines up all its judges against a wall.

To put it bluntly: removing all judges in one fell swoop is a loony and irresponsible proposal that reflects badly on its advocates. Eradicating entire political classes is the sort of thing desperate revolutionaries hatch when the revolution is running out of steam or when they are running out of time. "Just Vote No" is an intellectually bankrupt idea about as likely to solve the State’s political problems as Nancy Reagan’s "Just Say No" advice solved the Nation’s drug problems.

But it is not just a bad, stunningly stupid idea, it is also diametrically opposed to the interests of reform and likely to unleash a plague of unanticipated horrors into state politics that could set back reform for decades.

The practical consequence of wholesale removal of judges is chilling. Those judges removed would be replaced by temporary appointment with no voter input and maximal interest group influence. Instead of a new day of reform, state government would be transformed into a virtual patronage mill for the allocation and awarding of plum judgeships. In wrongheaded pursuit of reform, the reformers would have produced a period of political plunder cum civic chaos not seen in Pennsylvania since Civil War days.

And in a final irony worthy of Kafka, Governor Rendell, who signed the pay raise in the first place, would get to make those juicy judicial replacements while the State Senate would wheel and deal for confirmation removing even further the selection of judges from the voters.

This nightmarish scenario need not happen. Pennsylvania’s reformers have accomplished much in only a short time, and there is more to do. But they have gone over the edge on this one.

Trying to reform state politics with a meat cleaver might send a message as some reformers think. But it sends the message that the State’s burgeoning reform movement has run out of ideas. That’s not the message reformers want to send or the message Pennsylvanians need to hear.

Politically Uncorrected™ is published twice monthly. Dr. G. Terry Madonna is a Professor of Public Affairs at Franklin & Marshall College, and Dr. Michael Young is a former Professor of Politics and Public Affairs at Penn State University and Managing Partner at Michael Young Strategic Research. The opinions expressed in this article are solely those of the authors and do not necessarily reflect the opinions of any institution or organization with which they are affiliated. This article may be used in whole or part only with appropriate attribution. Copyright © 2007 Terry Madonna and Michael Young.