holding that governor's constitutional duty to name appointee "confers a legal interest" on state senator seeking to compel governor to fulfill his or her constitutional duty
How later courts described this case
- holding that governor's constitutional duty to name appointee "confers a legal interest" on state senator seeking to compel governor to fulfill his or her constitutional duty
- Governor’s nomination power is forfeited if not exercised during ninety-day period
- ninety-day constitutional provision is mandatory, and not merely directory, as to the timeliness of nominations
- “[T]he power of appointment is intrinsically an executive function.”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
President Judge Bowman :
As I perceive no fundamental private constitutional right raised in this proceeding which is brought by one member of the Senate of Pennsylvania in his capacity as a Senator against the Governor of the Commonwealth and which I believe to essentially involve a political question, I believe it is one in which the judiciary should not interfere. See Baker v. Carr, 369 U.S. 186 (1962); Sweeney v. Tucker, 473 Pa. 493 , 375 A.2d 698 (1977).
The majority well analyzes Baker and Sweeney as applied to this case with respect to their articulated standards for determining if a political question should be judicially resolved. However, in my view, before reaching that issue one must first determine if the person bringing the cause asserts a violation *62 of a fundamental constitutional right. If not, a political question should not be judicially resolved even if the articulated standards for judicial interference into a political question would otherwise be met. The right granted to the body of the Senate of Pennsylvania to confirm gubernatorial appointments, Pa. Const. art. IV, §8(b), is not, in my opinion, a fundamental right of an individual Senator.
Consideration of the cause asserted, the relief sought, briefs filed and the oral argument advanced by the parties leaves no doubt in my mind that the issue raised is a political one which the judiciary someday may have to resolve in a proper posture and context. This case is not the one to do so.
I respectfully dissent and would dismiss the petition for review.