Erie at Large: Judges Matter
Interpretation and preservation of law at stake each election
I've written that brief statement many times before in this column and I suspect that if we were to recount each instance of its publication, every use would seem more urgent than the time before. This moment is no different and, I will argue, the most urgent.
Across the country, our judges have demonstrated time and again that they are the last lines of defense for our democracy; they interpret and define our liberties, and they protect and preserve our rights. It's what makes their selection, whether by appointment or election, such an important civic responsibility.
Pennsylvania is just one of seven states that still elects judges of the State Supreme Court through partisan elections, and one of only six states that elects judges to what are called the intermediate appellate courts — the courts between your local courts and the State Supreme Court — which in Pennsylvania are our Superior and Commonwealth courts. In the most simplified terms, the Superior Court hears individual matters like civil and criminal appeals and the Commonwealth Court hears institutional matters relating to government and business. Those distinctions aside, the judges of each of our three appellate courts share one important characteristic: each of them is elected by voters through partisan campaigns, in which each of the judges seeks the nomination of a major party, thereby framing the candidates' perspectives on any number of issues.
This fall the people of Pennsylvania will elect a new Justice of the Pennsylvania Supreme Court, two new members of the Superior Court, and a new judge of the Commonwealth Court. While each race is important for its own set of issues and impending litigation, no race this year is more important than the race for Pennsylvania's Supreme Court.
We need only look at the Court's decision to preserve democracy in the wake of the 2020 election to understand the magnitude of its power. When a Commonwealth Court judge attempted to halt the certification of Pennsylvania's election results in a case filed by Congressman Mike Kelly, who asked that Pennsylvania throw out all mail-in ballots from the 2020 election, the Secretary of the Commonwealth immediately appealed to the State Supreme Court, which dismissed Kelly's case and the Commonwealth Court decision with prejudice, meaning that the Republican election deniers could not bring the same issue before the courts again.
With a presidential election on next year's ballot and no shortage of anti-democratic shenanigans in the queue, the balance of power on the State Supreme Court remains critical to the future of our democratic experiment.
Moreover, the United States Supreme Court inadvertently elevated the importance of state Supreme Courts across the United States when it issued its decision in Dobbs v. Jackson, the case which overturned Roe v. Wade and eliminated federal protections for abortion rights. The Dobbs decision essentially made abortion a state's rights issue, relegating the legality of abortion rights to state legislatures and state courts in places where conservative gerrymandering has turned over control of the legislature and the courts to lawmakers and jurists who had anti-abortion legislation teed up for the day Roe v. Wade was no more.
In Pennsylvania, that means that any anti-abortion legislation that would make it through the state legislature — an unlikely prospect with the current Democratic House of Representatives and Democratic governor, but a relative certainty should that balance of power revert to full Republican control as it had been during the era of Roe — would ultimately have its constitutionality decided by the Pennsylvania Supreme Court.
There are currently four Democrats and two Republicans serving on the Pennsylvania Supreme Court. The winner of this year's general election will fill a vacancy created when then-Chief Justice Max Baer, a Democrat, died last year.
The Democrat in this year's race, Judge Dan McCaffery, is an accomplished judge who is highly recommended by the Pennsylvania Bar Association. Since January 2020, he's been a judge of the Pennsylvania Superior Court and according to the Pennsylvania Bar Association, McCaffery has a sound knowledge of legal principles. His opinions and legal writings are well written and well-reasoned. In addition, the candidate has a demonstrated record of community involvement."
An Army veteran, McCaffery served as an assistant district attorney in Philadelphia and was elected to the Philadelphia Court of Common Pleas in 2013 and the Pennsylvania Superior Court in 2019. He's been unabashed on the campaign trail in his support of women's reproductive rights and his disagreement with the SCOTUS decision in Dobbs.
McCaffery recently told Politico that "it's pretty clear from a personal standpoint that I believe those particular issues are best decided between a woman, her conscience, and her doctor."
His outspoken defense of a woman's right to choose has earned him the endorsement of Planned Parenthood, which calls McCaffery a "reproductive health champion."
McCaffery's opponent, Carolyn Carluccio, is the president judge of the Montgomery County Court of Common Pleas. She ran a Republican primary campaign pandering to anti-abortion voters in an attempt to secure her party's nomination. It worked. But once the nomination was secured, Carluccio scrubbed her website of extremist positions on the abortion issue despite endorsements by the Pennsylvania Pro-Life Federation and the Pro-Life Coalition of Pennsylvania, organizations that refer to contraception as "spiritual evils."
Publicly, since the end of the primary, Carluccio has taken a Brett Cavanaugh-like stance on abortion stating that she would "uphold the law." Cavanaugh showed America how he felt about the "law" when he joined the majority of the Supreme Court to overturn Roe v. Wade.
We shouldn't expect anything less from Carluccio should she have the opportunity here in Pennsylvania.
Judges matter. The voters of Pennsylvania shouldn't take that for granted this November. Our democracy, our liberties, and your rights may depend on it.
Jim Wertz can be reached at jWertz@ErieReader.com, and you can follow him on Twitter @jim_wertz.