State Rep Cris Dush Lashes Out Against Statewide Checks And Balances

We have something of a follow up to this week's Toomey Letter.

From The Hill:

A Pennsylvania state representative has introduced resolutions to impeach four of the five state Supreme Court justices who voted to override congressional district maps they said were unfairly gerrymandered on partisan lines.

The resolutions, introduced by state Rep. Cris Dush (R), accuse Justices Kevin Dougherty, Christine Donohue, Debra McClosky Todd and David Wecht of misbehavior in office.

In a memo to fellow House members, Dush said the ruling overriding Pennsylvania’s U.S. House district lines amounted to an overstep of judicial authority under the state Constitution, which lays out the path by which a bill becomes a law — in this case, a bill to delineate the district lines after the decennial Census and reapportionment process.

Here is the memo. After describing the order from the State Supreme Court, it reads:

This Order overrides the express legislative and executive authority, found in Article IV, Section 15 of the Pennsylvania Constitution, concerning the Governor’s veto authority and the General Assembly’s subsequent authority to override such veto. Article IV, Section 15 clearly lays out the path a bill must take to become law.

The five Justices who signed this order that blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, engaged in misbehavior in office.

Wherefore, each is guilty of an impeachable offense warranting removal from office and disqualification to hold any office or trust or profit under this Commonwealth. I would ask you to please join me in co-sponsoring this legislation.

By the way, the five justices who so offended snowflake Dush are Democrats - Dush, of course, is a Republican. The

From WHYY we learn that "[Dush] hasn’t introduced a resolution for the court’s fifth Democrat—Justice Max Baer—because while Baer agreed the 2011 map was unconstitutional, he didn’t want to redraw it on an abbreviated timeline."

From the Pennsylvania Constitution, Article IV, Section 15 reads:

Every bill which shall have passed both Houses shall be presented to the Governor; if he approves he shall sign it, but if he shall not approve he shall return it with his objections to the House in which it shall have originated, which House shall enter the objections at large upon their journal, and proceed to re-consider it. If after such re-consideration, two- thirds of all the members elected to that House shall agree to pass the bill, it shall be sent with the objections to the other House by which likewise it shall be re-considered, and if approved by two-thirds of all the members elected to that House it shall be a law; but in such cases the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journals of each House, respectively. If any bill shall not be returned by the Governor within ten days after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless he shall file the same, with his objections, in the office of the Secretary of the Commonwealth, and give notice thereof by public proclamation within 30 days after such adjournment.

On the other hand, there's something called Judicial Review where the judiciary has the authority to overturn what it has deemed as an unconstitutional law. This has been the case for a long long time in Pennsylvania.  Take a look at this page from the "Report of the...Annual Meeting of the Pennsylvania Bar Association" (1900):

In the earlier history of the states, the courts were rarely called upon to declare acts of the legislature unconstitutional. In our Commonwealth for the half century following the Constitution of 1790 there is not a single instance where a statute was determined to be unconstitutional - but there was a uniform consensus of judicial opinion...that the judiciary must have the power of declaring a statute to be of no force, if enacted in disregard of the higher law of the Constitution.

In the minutes of the Council of Censors in 1784, the committee appointed to point out the defects in the Constitution of 1776, inter alia reported:

Your committee conceives the said Constitution to be in the this respect materially defective, referring to the power of the legislature to remove judges:

Because if the assembly should pass an unconstitutional law and the judges have virtue enough to refuse to obey it, the same assembly could instantly remove them.

This indicates that the men who took part in forming our government had a very definite opinion that an unconstitutional law was no law - and that the test of virtue in a judge would be his refusal to obey it... (p 266)

That was written 117 years ago about stuff that had happened a hundred years or so before that. I would like to emphasize the example that the Council of Censors used - what is described then is exactly what Representative Dush wants to do now. Plus ça change, plus c'est la même chose, je pense.

The State Supreme Court found the Act that protects your party's Congressional districts to be unconstitutional, Representative Dush. It's no longer the law. Get over it. It's not an impeachable offense simply because you don't like it.

It's amazing to me that an elected official proposing legislation to limit a state's judiciary's authority does not know the history of that state or that judiciary.

[Full Disclosure: Twenty years or so ago, I had a temp job (as a runner and copy-guy) in the same law office where Justice David Wecht was then employed as an attorney. We had minimal contact then and other than my bumping into him 4 or 5 years ago downtown (where we shook hands and exchanged a few pleasantries) we've had no contact since.]