Chief justice's death leaves vacancy in Pa.'s Supreme Court and Tom Wolf with a decision

The sudden death of Chief Justice Max Baer on the Pennsylvania Supreme Court leaves a gap on the commonwealth’s top judicial panel at a critical juncture, just before an election of national significance.

And while Justice Debra Todd, the most senior remaining jurist on the court, has already succeeded Baer as chief justice, the process of filling the seven-member panel's open seat could be far less seamless. 

Baer, 74, was already scheduled to retire in December, since Pennsylvania's constitution precludes judges from serving after they turn 75. But his abrupt death last week leaves Gov. Tom Wolf with the decision of whether to appoint a temporary justice or leave the position vacant until his successor takes office in January.

Wolf's office says he hasn't yet determined whether he'll nominate someone for the empty seat, and a legal expert says the Democratic governor might have a hard time finding a candidate the Republican-majority Senate would confirm.

That leaves the court one person short as it considers a range of important cases — including one challenging a state statute limiting the use of Medicaid funds for abortions and another contesting municipal target shooting restrictions.

The Pennsylvania courts announced Saturday morning that the chief justice had died at his home near Pittsburgh. Baer, a Democrat, was first elected to the Supreme Court in 2003 and became chief justice last year.

“Chief Justice Baer was an influential and intellectual jurist whose unwavering focus was on administering fair and balanced justice,” Todd said in a statement. “His distinguished service and commitment to justice and fairness spanned his decades on the bench — first as a family court judge in Allegheny County and eventually as an administrative judge in family court before being elected to serve on the Supreme Court.”

Baer’s memorial service took place Tuesday morning. 

Who’s the next chief justice?

The position of chief justice goes to the Supreme Court member with the most continuous experience on the panel, so the title immediately passed to Todd when Baer died. She’s the first woman in Pennsylvania history to fill the role.

Todd was first elected to the Supreme Court as a Democrat in 2007 and retained her spot on the bench in 2017. Her current term lasts through December 2027, according to the court’s website. 

Before joining the high court, she worked as a litigation attorney for U.S. Steel Corp. and then spent about a decade in private practice. In 1999, she was elected to the Pennsylvania Superior Court. 

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Craig Green, a professor at the Temple University Beasley School of Law, said Todd is well-regarded in the Pennsylvania legal community, but it’s difficult to predict how she might differ from Baer in her approach. Still, as the 300-year-old court’s first female chief justice, her impact is immediate, he said. 

“I think it sends an important message to the large fraction of the Pennsylvania bar who are women,” he said. “I think that symbolic importance is something one can appreciate right away.”

How will the vacancy be filled?

The governor can nominate a justice to the Supreme Court, after which the Senate must confirm the person by a two-thirds vote before he or she can take the bench. That justice serves until Pennsylvanians vote for a replacement — an election that, in this case, would take place next year.

But it’s not clear if Wolf will fill the vacancy before he leaves office in January; on Monday, Wolf’s spokeswoman said he hadn’t yet decided if he’s going to nominate a justice to the open seat. 

Green said it could be challenging for Wolf, a Democrat, to choose a temporary justice who would pass muster in the Republican-majority Senate. 

“The fight between Democratic Gov. Wolf and the Republican General Assembly has been persistent, it has been fierce and, sometimes, it has been explosive,” Green said. 

So Wolf’s chances of finding someone who can win two-thirds support in the Senate, he said, hinges on “very, very complicated and very turbulent political dynamics that are hard to predict in the abstract.”  

How might the court’s dynamics change?

Before Baer’s death, Democrats held a 5-2 majority on the Supreme Court, a partisan advantage that could remain unchanged or narrow to 4-3 depending on whether a Republican fills the open seat. 

But Green said it’s a mistake to assume justices will always make decisions along party lines, noting that Todd sided with her Republican colleagues earlier this year in a significant decision about the commonwealth’s congressional district map. 

“Even though everyone's temptation is to think, in terms of outcomes, a Democrat’s a Democrat, I think that's not always the case,” he said. 

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And in the near term, having an even number of justices raises concerns about the prospect of a deadlocked court. That's particularly true with an election looming and critical Senate and gubernatorial races in the balance, he said, adding that the panel could be facing some unexpected decisions in the coming months.

“The possibility of coming to a three-to-three stalemate on a lot of very important issues that could come forward very quickly, for example election law … it’s a little unsettling to think about those scenarios too much,” he said.