In a Rare Battle, Justices Are Fighting for Their Seats

In a Rare Battle, Justices Are Fighting for Their Seats

By JAMES DAO

Published: November 6, 2005

HARRISBURG, Pa., Nov. 4 - In one of the oddest and most passionate Supreme Court races in Pennsylvania history, a low-budget campaign to repeal pay raises for state officials has grown into a powerful movement to oust two members of the state's highest court.

Fueled by anti-incumbent ire, the campaign has forced sitting Supreme Court justices to campaign with stump speeches and television commercials for the first time in memory. No appellate justice has ever lost a bid for re-election in Pennsylvania, court officials said.

The movement has also rattled the General Assembly, which on Wednesday night took the extraordinary step of passing bills to repeal the raises. Though the two chambers passed different versions, the House is expected to return on Monday to reconcile its bill with the Senate's. Gov. Edward G. Rendell, a Democrat who received a raise under the measure, said he would sign the Senate version if it reached his desk.

"I've never seen anything like this," said G. Terry Madonna, director of the Keystone Poll at Franklin & Marshall College in Lancaster. "It's a populist insurrection."

It all began with an explosion of voter anger after the legislature voted in July to raise its base salary to $81,050, from about $69,000. Leaders and committee chairmen received significantly more, and the governor, his cabinet and judges also received raises.

Using rallies, radio talk shows and blogs, grass-roots organizations began pushing for a repeal of the raises, complaining that the legislature was too corrupt and too ineffective to deserve better pay.

But no legislators were up for election this fall. So the repeal movement set its sights on the next best thing: two justices on the seven-member State Supreme Court, Russell M. Nigro and Sandra S. Newman, who are seeking second 10-year terms.

Though the justices had no direct role in enacting the raises, the leaders of the repeal have called them dupes of the legislature and urged people to vote them off the bench on Tuesday.

"Why do legislators think they can get away with this?" said Timothy W. Potts, 56, founder of Democracy Rising, one of the repeal groups. "The answer is, the Supreme Court has told them it's O.K."

Under the Pennsylvania election system, appeals judges seeking re-election do not run against opponents. Voters are asked whether they want to keep the judges on the bench. If a judge is rejected, the governor nominates a replacement who must be confirmed by the Senate.

Historically, these elections have been sleepy affairs in which justices have won 70 percent of the vote without spending a nickel. But this year's campaign has forced Justices Nigro and Newman to spend tens of thousands of dollars on radio and television advertisements.

"It's extremely unfair," said Justice Nigro, 59. "It has forced Madame Justice and I to run a campaign where normally we would not have."

The justices have received support from the Pennsylvania Bar Association, which has recommended both for retention, calling them hard-working, independent and respectful.

"These two people do their job very well," said William P. Carlucci, president of the association.

Pennsylvania is different from states where conservative groups have tried to oust judges they consider "activists." Here, the vote-no campaign cuts across the political spectrum. And rather than attacking the justices as too meddlesome in legislative affairs, people are complaining that they have not done enough.

What the movement wants is for the Supreme Court to stop what it calls the flagrantly unconstitutional behavior of the legislature, which has routinely made sweeping changes to important bills in the middle of the night without debate. That is how the pay raise bill was enacted, the campaign contends, as was a 2004 law legalizing slot machines.

The Supreme Court has repeatedly upheld that behavior, Mr. Potts says, as it did in a 2002 decision signed by Justices Nigro and Newman.

But Justice Nigro says that a fair reading of his record shows that in cases involving significant constitutional questions about state laws, he has voted more than 40 percent of the time to declare part or all of those laws unconstitutional. "It just doesn't wash as an argument to say I'm a rubber stamp," he said.

Justice Newman, 68, declined to comment through an aide, citing the recent death of her husband.

There has been little polling on the election, and analysts say turnout is likely to be light. The outcome, they say, will depend on how many people like Lois Neumayer vote.

During a cigarette break near the Capitol, Ms. Neumayer, 56, a secretary, called the raises "outrageous." She said she did not know the justices' names or anything about their records. "I just know that when I see 'judge' on the ballot, I'll vote no," she said. "I want to send a message."

A Keystone Poll in September found that 79 percent of voters thought the new raises were not deserved, and 69 percent rated the General Assembly as fair to poor. An internal poll conducted for the Senate in October also found that voters' opinions of the legislature had shifted to strongly negative from generally positive in the past year.

Mr. Potts started Democracy Rising over a year ago to push for changes including tougher regulation of lobbyists and more open debate on bills. But it was the pay raises that galvanized support for his work. "They played right into our hands with the pay raise," he said. "It was incredibly stupid."

Some judicial watchdog groups say the assault on Justices Nigro and Newman underscores the problem with subjecting judges to elections where one or two hot-button issues overwhelm all else.

"We don't want judges looking over their backs and saying, 'Should I make a more popular decision because I don't want to be voted out?' " said Lynn A. Marks, executive director of Pennsylvanians for Modern Courts, a nonprofit group that supports merit selection of judges.

But supporters of the vote-no movement say the ouster of the justices would prove that democracy works. And regardless of what the House does on Monday, they intend to push for an overhaul of the General Assembly next year.

"The legislators are confused and scared right now," said Russ Diamond, executive director of PACleanSweep, another group pushing to repeal the raises and revamp the legislature. "But that doesn't change a thing for us." Source: http://www.nytimes.com/2005/11/06/national/06judges.html

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