In a 26-24 vote Wednesday morning, the state Senate rejected Gov. Edward G. Rendell's nominees for four appellate court vacancies despite Senate Minority Whip Michael O'Pake's plea to heed the urging of Chief Justice Ronald D. Castille to put the courts' mission ahead of politics.

Since Rendell announced his nomination Jan. 29 of three former appellate court judges and a law professor to fill the vacancies, Senate Republicans had bemoaned a lack of bipartisan consensus in the decision-making process.

The vote to reject the nominations substantially followed party lines. But Republican Sens. John H. Eichelberger, Jeffrey E. Piccola and Stewart J. Greenleaf, who is judiciary committee chairman, voted in favor of confirmation.

Rendell nominated former Commonwealth Court Judge James Gardner Colins to fill the Supreme Court vacancy created when Ralph J. Cappy resigned in January.

Rendell also nominated former interim Supreme Court Justice James J. Fitzgerald and former interim Superior Court Judge Robert C. Daniels for vacancies on the Superior Court created by the election of Justices Debra Todd and Seamus P. McCaffery. Rendell nominated Duquesne University law professor Kenneth E. Gormley to the vacancy created by Colins' resignation from the Commonwealth Court.

On Wednesday, Senate Majority Leader Dominic Pileggi reiterated many of the concerns about the decision-making process that led to Rendell's nominations. He added that Rendell has passed up a historic opportunity to add diversity to Pennsylvania's appellate courts.

"The governor has stated that his role in the process is to appoint, and the role of the Senate is to consent. In the governor's view the Senate should simply determine whether his nominees meet the constitutional qualifications," Pileggi said.

That reduces the role of the Senate to a purely ministerial review of qualifications and a rubber stamp on the governor's recommendations. Pileggi said a close reading of the state constitution indicates that was not the intent of its authors.

"From the governor's perspective the word advice is meaningless in that section of the constitution," Pileggi said. "However, the authors of the constitution clearly intended the word advice to mean something because the phrase 'advice and consent' is different than the language used in Article IV, Section 8." That section of the constitution deals with gubernatorial appointments to cabinet and administration positions.

"The word advice is notably missing," Pileggi said. "The meaning is crystal clear. The Senate is to have an advisory role when it comes to appointing judicial officers. This makes good sense because the judiciary is an independent branch of government."

O'Pake urged Senate members to vote in favor of confirmation and quoted at length from a letter Castille sent to Republican leaders highlighting the effect of the impasse on the courts, judges and litigants.

"I am confident there is no dispute about the qualifications of these nominees, so voting them down today is just another example of the usual from Harrisburg, which is not what the people want or expect from us," O'Pake said. "This disrespects the nominees and it fails the people of Pennsylvania.

"The constitution does not require the governor to follow the advice of the Senate. If that were the case, presumably it would give the appointment power to the Senate rather than to the governor," he said. "The purpose of the confirmation provisions is to make sure that the governor nominates judges to fill vacancies, and that the Senate makes sure that they are properly qualified to do the job."

In an e-mailed statement, Rendell spokesman Chuck Ardo said the vote was an example of the Senate Republicans putting political interests ahead of those of Pennsylvanians.

"Given that the governor, the Republican chief justice of the Pennsylvania Supreme Court and the Republican chairman of the Senate Judiciary Committee all agreed that these nominees were well qualified and deserved to be confirmed, and that the vast majority of Republicans in the Senate indicated with their vote that qualifications don't matter, it's difficult to say where we go from here," Ardo said.

At least one of the nominees was obviously disappointed.

In a written statement e-mailed to The Legal, Colins said the nominees were deserving of the appointments, noting that they had a combined 120 years of legal experience.

"It is unfortunate that the Pennsylvania Senate has chosen to reject our nominations, bypassing the procedure outlined in the rules of the Senate in a manner that avoids public scrutiny," Colins said in his statement.

"To deny us, collectively, public hearings on our qualifications before the Senate Judiciary Committee, in contravention of the traditional practice of the Senate, is truly regrettable. As I have stated in numerous opinions, the citizens are not well served by their elected officials making critical decisions behind closed doors."

Wednesday's events were not unexpected. Republican leaders in the Senate were cool to the nominees from the start and have said Rendell ignored their recommendations. They later criticized the slate for what they said was a lack of diversity. All the nominees are white, and three of the four were from Philadelphia. They also singled out Colins and claimed he was too sympathetic to the Rendell administration.

However, others claimed the resistance to the nominees was purely political. And Castille had urged the Senate to confirm the nominees, warning that the vacancies would create backlogs and potentially result in evenly split Supreme Court decisions.

Robert L. Byer, a former Commonwealth Court judge and head of the appellate division of Duane Morris' trial practice group, expressed outrage over the Senate leadership's handling of the nominations.

"I think it's a disgrace for the Senate not to confirm and actually to vote against the confirmation of these nominees," Byer said. "It's completely absurd and an abuse of what the constitution intended by giving the Senate confirmation powers."

Byer also rejected Pileggi's interpretation that the constitution requires the governor to consider the input of the Senate in his nominations.

"The advice and consent process is a check on the governor to ensure he has nominated people who are appropriate for the position," he said.

Byer noted that the Senate's action Wednesday was the mirror image — politically speaking — of what U.S. Senate Republicans have accused Democrats of doing to President Bush's judicial nominees.

J. Andrew Crompton, counsel to Senate President Pro Tempore Joseph B. Scarnati III, said none of the four nominees was given a hearing before the Senate judiciary committee. While he said it's not unprecedented for a governor's judicial nominees to be denied a hearing, it is unusual for the governor to allow a nominee to be rejected.

"The governor played brinksmanship and refused to withdraw the names," Crompton said.

Stephen C. MacNett, general counsel to the Senate Republican Caucus, said Gov. Tom Ridge withdrew a number of judicial nominees when it became clear they would not be confirmed.

"When it is clear that there is not going to be a confirmation, there is no hearing in order to avoid inconveniencing the nominee in what would essentially be an exercise in futility," MacNett said.

He also said Rendell did not appeal to the Senate to give any of the nominees a hearing.

Crompton said the Senate leadership hopes the next step will be the beginning of a dialogue to identify a slate of candidates who meet the constitutional requirements and the Senate's desire to see geographic and cultural minorities represented on the appellate bench.

The Senate leaders won't necessarily put up the same names as they did before, and they expect Rendell to make the first move, Crompton said.

"Without some sort of indication where the governor intends to head, we won't be able to identify our picks in advance," he said.

MacNett said it is still possible for the governor and Senate to seat the interim judges before summer recess if Rendell acts quickly.

"It seems to me a process that is targeted toward getting nominees to the Senate by the beginning of June could work," MacNett said.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.