One day the Devil challenged the Lord to a baseball game. God said, “I have Babe Ruth, Lou Gehrig, Christy Mathewson, and all the greatest players on my side.”
“Yes,” replied the Devil, “but I have all the umpires on my side!”
Get it? Having the greatest players won’t help you much if the umpires are corrupt. Just like having the best legal arguments and the law on your side won’t help you much if the judges are corrupt. Thus the importance of this year’s PA state Supreme Court election, in which we elect one new justice to the state Supreme Court and 6 other statewide judges. If we want to resist Trump, here’s a great place to do it.
More below the fold.
Malfeasance
Let’s begin by flashing back to baseball briefly. This is an image of one of the most infamous baseball plays of recent times:
For those unfamiliar, Armando Galarraga was pitching a perfect game for the Detroit Tigers on June 2, 2010. That’s an extremely rare occurrence—it’s only happened about 20 times in baseball history, dating back to 1880. On this play, what should have been the last play of the game, Galarraga received the throw at first base before Jason Donald of the Cleveland Indians reached the bag. He should have been called out, which would have finished off the perfect game. Instead, umpire Jim Joyce called him safe.
Now, Joyce is an honest man, and did not deliberately miss that call. Afterward, as baseball fans know, he publicly fessed up to his error. Most Republican judges, however, are not honest men or women. Look at King v Burwell—other than Anthony Kennedy and John Roberts, every Republican judge who heard that case accepted a completely spurious legal argument to arrive at their predetermined outcome that subordinated the rule of law to the goals of the fascist GOP base. Paul Krugman put it well: www.nytimes.com/...
So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.
In Pennsylvania alone, we have had a number of distinguished Republican judges of questionable character:
Joan Orie Melvin resigned after her indictment and conviction for public corruption.
Michael Eakin resigned after it came out that he sent racist, sexist, pornographic emails.
Sandra Schultz Newman endorsed the idea that electing Obama would lead to a second Holocaust, although she presumably supported Donald Trump.
Ronald Castille heard an appeal of a death penalty case that *he personally* had prosecuted before becoming a judge. The US Supreme Court, 5-3, vacated the PA Supreme Court’s ruling, on the grounds that Castille should have recused himself. (Another example of election have consequences, btw—the condemned inmate in this case only lived to appeal because Democratic Gov. Tom Wolf instituted a moratorium on the death penalty. Had Tom Corbett, a Republican, been reelected in 2014, the execution would have been carried out.)
That’s 4 of 5 Republicans to serve on the PA Supreme Court since 2001, not counting interim appointments (when vacancies arise, the governor makes a temporary appointment effective through the next election). The fifth is Thomas Saylor, who is still serving, and who, like the others, rigged PA’s legislative and congressional elections through a thoroughly undemocratic gerrymander that gives Republicans a near-supermajority even when they lose the popular vote. The PA Supreme Court appoints the tie-breaking member of the redistricting commission that is otherwise evenly divided along party lines, and then the Court signs off on the plan when challenges inevitably arise. Naturally, the Republican Court approved a gerrymander that undermines democratic governance for the sake of their tribe.
And more recently, as I wrote about, a Republican judge tried to rig a special election by knocking the Democrat off the ballot—and then refusing to allow Democrats to field a replacement candidate. Seems like a catch-22 to me. Thankfully, the replacement Democrat, Emilio Vazquez, ran a successful write-in campaign.
A Brief History/Review
I wrote a couple diaries in February, in which I discussed recent PA judicial structure, races (2001-2015) and their results, and introduced the candidates. I’ll not repeat everything from those diaries, but simply sum up what I wrote there. PA has three appellate courts—Supreme, Superior, Commonwealth. Superior and Commonwealth hear appeals from the trial courts—Superior hears more total cases, but Commonwealth hears more politically charged cases, thanks to their differing jurisdictions. Appeals from either of those courts go to the Supreme Court.
An example of a Commonwealth Court case is this—recently, the Court ruled to let frackers off the hook from paying impact fees to the taxpayers. www.thelegalintelligencer.com/… The judges in the majority were all Republicans. The two dissenters? The only Democrats on the Court, Michael Wojcik (elected in 2015) and Joe Cosgrove (interim appointment by Gov. Tom Wolf).
For open seats, PA holds partisan elections, while incumbents running for reelection face only a nonpartisan yes/no retention vote, which they NEVER lose absent a major scandal. When multiple seats are open, all candidates appear on one ballot, and the top vote-getters win (e.g. with three open seats, the top three vote-getters win). The following are the results, year-by-year, since 2001 (PA judicial elections occur in odd-numbered years)--which party won how many seats that year, along with the highest Democratic raw vote total from Philadelphia.
2001: Republicans won 7 of 7, Philadelphia vote 133,498 (Dem. Supreme Court candidate. The Dems for the other courts got lower vote numbers from Philly.)
2003: Democrats won 3 of 4, coming within 28 votes—yes, 28 total votes—of all 4. Philadelphia vote 306,932.
2005: Retention only. Democratic judge lost, Republican judge narrowly retained, amid controversy over the legislature voting itself a pay raise. Philadelphia vote 55,666.
2007: Democrats won 3 of 5. Philadelphia vote 205,122.
2009: Republicans won 6 of 7, coming within about 2000 votes of all 7. Philadephia vote 95,707.
2011: Split, 1 of 2 seats for each party. Philadelphia vote 134,753.
2013: Republicans won 1 of 1. Philadelphia vote 85,549.
2015: Democrats won 5 of 5. Philadelphia vote 202,489.
We need good turnout from Philadelphia, but can’t fully rely on that—we need votes elsewhere too. The Philly suburbs, while they vote Democratic for president, senator, governor, still vote Republican for judge (although 2015 offers hope that may change soon). Blue-collar western PA typically still votes Democratic for judge. Those are some patterns to keep in mind as we choose our candidates.
The Matchups and Candidates
Supreme Court
One seat is open thanks to the resignation of the disgraced Michael Eakin, and in this case we already know the fall matchup. The Democrat, unopposed in the May 16 primary, will be Dwayne Woodruff, a trial judge in Pittsburgh. The Republican, also unopposed, will be the appointed interim justice Sallie Mundy (when vacancies arise, the governor appoints a temporary fill-in, who must run in the next election in order to serve a full term). Mundy should be considered the favorite—she is rated more highly by the PA bar, rated Highly Recommended as opposed to Woodruff’s Recommended. She is a Republican, and these low-turnout judicial races tend to favor Republicans. Also, she is a woman, and for some reason Republican women have a terrific track record of winning statewide judicial races. Consider—not counting interim appointees, 4 of 6 GOP Commonwealth judges, and 5 of 7 GOP Superior judges, are women. There is also Mundy, elected to Superior Court before being appointed to Supreme Court. (For Democrats, the corresponding numbers are: 0 of 1 Dems on Commonwealth Court, 3 of 4 on Superior, 2 of 5 on Supreme).
Woodruff should not be counted out, though, and he is certainly worthy of our support. In low turnout judicial races, geography and name recognition count for a good deal. Woodruff hails from Pittsburgh, which should help in the crucial southwestern region. He is also a former football player, having played a decade for the NFL’s Pittsburgh Steelers, who are almost a second religion in southwestern PA. He is a strong advocate for juvenile justice, and would be only the second racial minority ever elected to PA’s highest court. Excellent profile of him here.
It’s statements like that which instill some enthusiasm about Woodruff. Let’s get this democracy defender elected!
Superior Court
There are four seats open, and each party has five candidates running. For the GOP, we can safely assume the four endorsed by the state party will win; this is what happens almost always. These four are: the DA of Lancaster in central-eastern PA, and trial judges in Philadelphia, Northampton County (Lehigh area), and Blair County (Altoona). The Blair judge especially egregious—he describes himself as a “loyal Republican” who will “represent conservative values on the bench.” He does not even maintain the pretense of impartiality. This is a Donald Trump rubber stamp for sure, and definitely NOT someone we can count on to deliver justice. Nor can we count on the Philly judge, a black woman in the mold of Clarence Thomas.
As for the Democrats: we have Geoff Moulton of Montgomery County. He is an interim Superior Court judge appointed by Gov. Tom Wolf. We also have three trial judges—Carolyn Nichols and Maria McLaughlin of Philadelphia and Deborah Kunselman of Beaver County (blue-collar exurban PIttsburgh). The fifth candidate is Bill Caye, of Pittsburgh, a former prosecutor now in private practice.
For me, the choice is easy—Caye is the odd one out. He is the only one of the five who got a “Not Recommended” rating from the PA bar association. I’m not that enthused about his background anyway, and that poor review from the bar will hurt him in the fall. It gives the GOP a weapon where they don’t need one. Plus I like my Democratic judges to be qualified.
I will vote for Kunselman and Moulton—both are rated “Highly Recommended” and both bring in crucial geographic areas—Kunselman the southwest, Moulton the Philly suburbs. Note that no likely GOP candidate hails from the west and that Kunselman is the only viable Democrat from the west. I will also vote for McLaughlin and Nichols, who are rated “Recommended.” Here’s something that has me excited about Nichols:
Look at that last hashtag: #BlackRobesMatter. I don’t think that requires elaboration.
Commonwealth Court
Two seats open. The GOP has only two candidates—Christine Cannon, trial judge in Delaware County (the Philly suburbs), and Paul Lalley, corporate lawyer in Pittsburgh who ran for this court in 2015 and lost to now-Judge Michael Wojcik, the only Democrat on Commonwealth Court. Cannon is Highly Recommended while Lalley is Recommended.
The Democrats have a tough choice—we have six candidates for two slots. They are:
Joe Cosgrove, Highly Recommended, interim Commonwealth Court judge appointed by Tom Wolf.
Ellen Ceisler, Recommended, Philadelphia trial judge.
Todd Eagen, Recommended, Scranton labor lawyer.
Bryan Barbin, Recommended, Johnstown state representative.
Timothy Barry, Recommended, Pittsburgh lawyer.
Irene M. Clark, Not Recommended, former Pittsburgh magistrate.
My concern with this race is a repeat of 2009: there were two seats up then as well, and a plethora of Democrats running. In races like these, Democrats from Pittsburgh or Philadelphia have an advantage—most of the state’s Democrats live in one of those cities, and candidates’ home counties appear alongside their name on the primary ballot. In 2009, this led to Democrats nominating two underwhelming candidates from Pittsburgh, who went down to a convincing defeat in the fall. IF Barry and Clark take the nods based on geography, I think we are setting ourselves up for a recurrence of that.
As for my choices: Clark is out due to that rating. I can find little distinctive about Barry—there’s not much information out there, and what there is seems fairly nondescript as lawyers go. Barbin has working-class appeal coming from Johnstown, but he’s also an anti-abortion Blue Dog, and electing him would open up his state House seat, which would almost certainly flip to the GOP.
I am leaning towards voting for Cosgrove. He’s the only candidate with the highest bar rating. He appears to be a social justice Catholic—think Pope Francis. Or Cosgrove’s political hero, JFK. He is a strident opponent of the death penalty, and once got Mother Teresa to testify by phone in a capital hearing. His client got life in prison rather than the death penalty. Cosgrove, who has taught constitutional law, would be in position to rule on the death penalty as a Commonwealth Court judge. With Martin Sheen, Cosgrove has worked for multiple social justice causes over the years. He also made a couple guest appearances on West Wing. Additionally, the GOP will have a candidate with the highest bar rating. We might be well-advised to do likewise.
That leaves Ceisler and Eagen, and my dilemma—I really like both. Eagen is a progressive labor lawyer who has made his career representing working people, which could carry some weight among the union types. This is his second run for Commonwealth Court; he ran two years ago but lost the primary to Pittsburgh-based aMichael Wojcik. Ceisler is a solid progressive as well. She’s been involved with the Anti-Defamation League (somehow seems relevant these day), and women appear to have an advantage when running for judge. She was once attacked by a conservative Catholic publication, which alleged she could not be fair in presiding over the trials of Catholic priests because she was backed by LGBT and women’s groups. That makes her go up, not down, in my estimation. Finally, any Democratic judicial candidate willing to say things like this is pretty awesome:
ENVIRONMENT
The Pennsylvania Constitution guarantees all citizens the right to “clean air and pure water.” Issues related to clean air and water, fracking, pipelines, and a wide variety of land use and eminent domain issues are likely to come before the Commonwealth Court. The Court also makes rulings on regulations promulgated by the Department of Environmental Protection and other executive branch agencies that deal with the environment.
REPRODUCTIVE RIGHTS
Anti-choice lawmakers are pushing new legislation in Harrisburg that would restrict a women’s right to choose, including a 20-week ban on abortion. Commonwealth Court is likely to rule on any constitutional challenge to the legislation. Other state laws and regulations related to reproductive health also fall within the jurisdiction of Commonwealth Court.
WOMEN’S HEALTHCARE FUNDING
It is highly likely that the GOP-controlled state legislature will continue to wage war on funding for women’s healthcare. Funding to the Department of Health and the Department of Human Services may be restricted for reasons that violate the Pennsylvania and/or United States Constitution. It will be the responsibility of the Commonwealth Court to ensure that women’s constitutional rights are protected
LGBT EQUALITY & NON-DISCRIMINATION
Marriage equality may have come through the federal bench, but Commonwealth Court could potentially rule on many issues related to LGBT equality at the state level. This could include state regulations including proposed workplace anti-discrimination laws, which would protect LGBT individuals from being discriminated against at work and while seeking housing or other accommodations.
PROTECTING LGBT STUDENTS
There is a renewed push to ensure that LGBT students are safe from bullying in public schools. This is being done through a combination of new legislation and enhanced regulations from the Department of Education. Any court challenge to these new rules would likely end up coming before Commonwealth Court.
CIVIL LIBERTIES
Care about criminal justice reform, due process, or privacy? What about religious liberty, free speech, or transparency in government? Commonwealth Court could rule on cases that involve all of those issues and more. Any state law or regulation that infringes on civil liberties will likely come before the court.
CIVIL RIGHTS
Commonwealth Court could potentially rule on legislation related to voting rights, police accountability, affirmative action, and other civil rights issues. For example, Commonwealth Court ruled against the so-called “Voter ID” law that came before them in 2014. This is just one example of the many civil rights issues that could come before the Court in the future.
Doesn’t leave much doubt about where she stands, does she?
So...Ceisler or Eagen? Thoughts anyone?
Vote!
Primary Day is May 16. Please remind any PA progressives you know. Please chime in with anything I’ve left out, or whom you will vote for, especially in the Commonwealth Court race. And above all, please vote! That’s the most effective way to #Resist.