To paraphrase MSNBC’s Dan Abrams, this is why Pennsylvanians hate Harrisburg.

As someone who has been a long-time observer of the Pennsylvania judiciary and judicial elections and nominations, I have to say that the Senate Republicans’ claimed concerns about diversity ring false. Moreover, if the Senate Republicans are truly concerned about diversity, then the confirmation of interim judicial nominees is not the right forum to raise the concerns. If the judges Rendell nominated are ever confirmed, they will be on the bench for two years or less.

For space considerations, I had to edit the original article. Be sure to read the comments by Terry Madonna and Chief Justice Castille (who, in case you forget, is a Republican). I would add to Castille’s last comment that the impasse is hurting the litigants before the courts and could hurt Pennsylvania law itself if the Supreme Court winds up rendering decisions with no clear majority opinion due to having only six justices on the bench.

While acknowledging a lack of diversity among Gov. Edward G. Rendell’s appellate court nominees, Pennsylvania bar leaders rejected a call by Senate Republicans for the governor to “make a fresh start” and engage in bipartisan collaboration to choose candidates who better reflect the face of Pennsylvania.

In a letter to Rendell April 17, Senate Republican leaders listed in detail their reservations about Rendell’s nominees, including a lack of geographic, gender and racial diversity, and asked the governor to withdraw his proposal.

Signed by Senate President Pro Tempore Joseph B. Scarnati III and Majority Leader Dominic Pileggi, the letter is also critical of Rendell for ignoring the state Constitution’s provision for selection of judicial officers by advice and consent of the Senate. The Senators also identified problems with two of the former appeals court judges Rendell selected for temporary posts on the Supreme and Superior courts.
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“The four existing vacancies on the appellate courts present an opportunity to address diversity issues with our courts,” the letter said. “To have four openings at the same time is truly unusual. To confirm four white males – all from our two largest cities, and with three of the four being Philadelphians – would be to forgo the opportunity of a generation to add more balance to the appellate bench.”

Pennsylvania Bar Association President Andrew F. Susko said that while the association advocates diversity on the bench, the most important concern currently is getting the courts up to full strength.
“The first issue is whether they are well qualified or not, and they are. The second thing is that the nominations be promptly acted upon. That isn’t to say that the diversity of the nominees isn’t an important consideration,” Susko said.

A. Michael Pratt, chancellor of the Philadelphia Bar Association, said he has no doubt about the nominees’ qualifications, but is disappointed at the lack of diversity. Pratt said he finds it heartening that the Senate Republicans are concerned about the issue.

“It’s interesting as well as welcoming that the Republican leadership is interested in the diversity of the courts and we hope that it is something that they pay attention to in the future,” Pratt said. “It is not for me to question whether there is a political motive.”

Prince Thomas, Chair of the Pennsylvania Bar Association’s Minority Bar Committee, agreed that it is urgent to have the positions filled as quickly as possible.

“I would support moving forward on the nominees put forth by the governor. I recognize that it doesn’t reflect the diversity I would like to see but I believe it’s important to move forward for the judiciary,” Thomas said.
He added that the concern about diversity on the state’s courts is not a new issue.

“I don’t want to see diversity used as a political football,” he said.
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Rendell spokesman Chuck Ardo said the governor has no plan to withdraw the nominations and believes each of the nominees deserves a vote in the Senate. Ardo dismissed the Senate Republicans’ complaint about a lack of diversity.

“Had the governor nominated the nominees put forward by the Republican leadership, there would have been no more diversity on the court,” Ardo said. “I think that considering the source, it is a flawed argument from the beginning.”
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Political pundit G. Terry Madonna said the Senate’s assertion that Rendell has abandoned the traditional process is rooted in disappointment that the candidates the Senate wanted didn’t get the nominations.

When I talk to people, I get the sense that this is a power struggle over who gets the appointments. It’s about people,” Madonna said.
Madonna said the Senate and the governor typically reach an understanding over how nominations are made and under what circumstances the governor defers to the Senate leadership’s preference.

In this case, Rendell has chosen to go out on his own, and the Constitutional language about advice and consent forms a convenient framework to argue against his choices, Madonna said.

“It seems to me whenever you watch the Congress debate, whenever they resort to legalities, it’s because there’s a political problem,” he said.

“Someone once told me – an old professor – that every political problem eventually becomes a Constitutional problem.” The letter also identifies issues that make Colins and Daniels unsuitable to serve in the positions to which they’ve been nominated.

Colins, who resigned from the Commonwealth Court in October, would be precluded from hearing arguments or deciding any case appealed from the Commonwealth Court.

“By way of example, the substantial majority of cases heard by the Supreme Court during its March argument term came from Commonwealth Court, where Judge Colins either wrote the opinion, served on the panel or participated in the decision pursuant to the rules of that court. As a result, he would have to sit those cases out,” the letter says.

Chief Justice Ronald D. Castille said the Senate leadership exaggerates the number of cases from which Colins would be required to recuse himself. The number of appeals in which Colins authored or participated in the decision is about eight.

Although the Commonwealth Court circulates opinions to each judge for review, only those judges who sign an opinion would be required to recuse him or herself from hearing an appeal, Castille said.

“He can sit on every Superior Court case that we hear, and Superior Court makes up two-thirds of our docket,” Castille said.
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Castille said he also rejects the Senate leadership’s assertion that the interim appointments are an ideal opportunity to add diversity to the appellate bench.

“That particular angle misses the mark very widely,” Castille said. “If they’re interested in diversity, geographical or otherwise, they should put up candidates for election.”

The most important factor in selecting candidates for interim appointments is finding people “who can hit the ground running,” he said.
Colins, Fitzgerald and Daniels all have experience as appellate judges.

Furthermore, each candidate resides in a city where the court has an established infrastructure. To set up chambers for an appellate court judge costs between $700,000 and $1 million, Castille said.

“Theoretically, if they want someone from Erie, Scranton and Fulton County, it would cost us $4 million to set up these chambers,” he said.
Castille added that the impasse has a direct negative impact on the administration of justice. Litigants and advocates will face delays. Judges and justices will see an increase in their workloads and the confirmations of 20 common pleas court appointments are stalled, Castille said.

“It doesn’t hurt Rendell. The Senate gains nothing. The only people who are hurt by it are the judiciary, which indirectly hurts the citizens of Pennsylvania,” Castille said. “They could do this for two years. It’s not going to bother anyone but us.”