Experts Balk at Judicial Impeachment Moves in Pennsylvania

HARRISBURG, Pa. (CN) — As regional gerrymandering challenges draw an increasingly national focus, impeachment threats inspired by one such case drew condemnation from experts in constitutional law and judicial ethics.

“In Putin’s Russia, this is completely normal,” Harvard Law professor Lawrence Lessig said in a phone interview.

Nearly 5,000 miles west of Russia, the impeachment resolutions at issue were introduced Thursday in Pennsylvania by state Representative Cris Dush, who serves the 66th District of Indiana and Jefferson Counties.

With support from roughly 11 fellow Republicans, Dush’s resolution targets four judges on the Pennsylvania Supreme Court who found in January that state lawmakers had gerrymandered congressional districts to give GOP candidates an advantage.

Dush took issue not with the court’s findings, though, but with its decision to put a new map in place right away.

After the Republican-controlled Pennsylvania Legislature missed a deadline to submit a new map, the Pennsylvania judiciary signed off on new district linees submitted by college professor and frequent court-appointed redistricting expert Nathan Persily.

In an email about his position, Dush decried the ruling as “an unconstitutional theft of power.”

Dush casts this circumvention of the Legislature as a violation of the separation-of-powers clause in the U.S. Constitution, but the U.S. Supreme Court has rejected several such appeals in recent weeks by Republican lawmakers.

“The courts overstepped their power, taking it away from you the voter,” Dush wrote in a message to his constituents on his website. “When someone takes that right away from you by ‘whatever means necessary,’ you have every right to demand your legislators remove them from power.”

Professor Lessig, a constitutional law specialist, meanwhile called the impeachment threats an inappropriate way to “police judges.”

The developments have left him “astonishingly embarrassed … as a former Pennsylvanian,” Lessig added.

Though threats against the judiciary are not unique, Bill Raftery, a senior analyst for the nonprofit National Center for State Courts, emphasized that they are ramping up.

A March 23 report from Raftery’s group calls the Pennsylvania dispute “the fifth time in seven years that state high court judges there have been threatened with impeachment or removal from office over their rulings.”

In other states, judges have incurred such threats for rulings involving hot-button issues like the death penalty and same-sex marriage.

“These efforts are often meant to send a message to the judiciary that if [they] don’t do what legislatures want [them] to do, [they] could be next,” Raftery said in a telephone interview.

All of the Pennsylvania judges who struck down the gerrymandered map are Democrats.

The court’s two Republican judges both dissented, but the impeachment effort being pushed in the Pennsylvania Legislature has faced criticism from at least one member of this group as well, Pennsylvania Supreme Court Chief Justice Thomas Saylor.

“Threats of impeachment directed against justices because of their decision in a particular case are an attack on an independent judiciary, which is an essential component of our constitutional plan of government,” Saylor said in a statement last week.

Raftery’s group, the National Center for State Courts, notes that judicial-oversight authorities are authorized to discipline state court judges “for ethical lapses, but removal by lawmakers usually requires misbehavior in office or serious criminal wrongdoing.”

In all of the instances where a ruling inspired lawmakers to threaten impeachment, none of the threatened judges were removed from office, the report continues.

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