By Peter Hall | Pennsylvania Capital-Star
At the top of the November general election ballot, Pennsylvania voters will choose between Republican Carolyn Carluccio and Democrat Daniel McCaffery to serve for at least the next decade as a state Supreme Court justice.
Falling between presidential and midterm elections, statewide elections for appeals court seats have historically been low-interest, low-turnout races. But the state’s highest judicial authority wields the power to make consequential decisions shaping the state’s politics and policies and spending in the races has soared over the last decade with a record $15.8 million spent in 2015.
Just in the last year the court has rejected the Republican-controlled General Assembly’s congressional map as too partisan, substituting its own, and upheld the state’s vote-by-mail law.
Although judges and justices are required by the state’s ethics code to eschew most political activities, candidates run as Republicans or Democrats, the latter of whom have held a majority of seats on the seven-member Supreme Court since 2015.
This year’s race will not swing the partisan balance of the court, where Democrats hold a 4-2 majority, but the attention surrounding the showdown between McCaffery, a Superior Court judge from Philadelphia, and Carluccio, the president judge of the Montgomery County Court of Common Pleas, has highlighted the stakes.
Republicans hope to replace former Chief Justice Max Baer, a Democrat who died in October 2022, with Carluccio. That would give Republicans three seats and put the party in position to take a majority on the court the next time a seat is open, which could be as soon as 2025. Three of the court’s Democrats will face retention votes to stay on the bench that year but none of the six sitting justices will reach the mandatory retirement age of 75 by then..
So far, reported spending in the race has topped $4.5 million by the candidates’ campaigns and outside groups, with television, digital and mail ads leveling attacks on their records.
The Capital-Star interviewed Carluccio and McCaffery about their judicial philosophies, experience, and the speculation advanced by outside groups that the winner of the race could cast a deciding vote on the future of reproductive rights in Pennsylvania.
Carluccio was elected to the bench in 2009 after serving as a federal prosecutor in Delaware and holding several positions in Montgomery County government including chief public defender. As a judge, Carluccio presided over family, criminal, civil, and juvenile cases.
Public service has been a passion and a pleasure, Carluccio said, and has given her experiences that allowed her to see the perspectives of victims and defendants and understand that both want and deserve an impartial judge to apply the law and protect their rights.
“That’s really challenging and I will tell you that I have consistently, in spite of what other people have been putting out there, … said that I will apply the law even when I don’t like it, even if I don’t agree with it, doesn’t matter, I will apply the law,” Carluccio said.
Before his election to the Superior Court in 2020, McCaffery served for five years as a Philadelphia Court of Common Pleas judge, an assistant district attorney and in private civil practice.
McCaffery said his experience as a judge of an appeals court sets him apart from Carluccio with an understanding of the constitutional questions and splits in jurisprudential authority that the Supreme Court is asked to resolve.
“I am somebody who believes the Constitution to be a living document,” McCaffery said. “The Constitution was broadly written by our founding fathers to allow for constitutional interpretation, in accordance with changing mores and changing society.”
The state’s Code of Judicial Conduct bars candidates for judicial offices from engaging in political activity that would impugn the independence, integrity or impartiality of the courts. That includes statements about how they might rule on issues likely to come before the court, leaving judicial candidates with a challenge to connect to voters who are increasingly motivated by specific political and social issues.
In interviews with the Capital-Star, both Carluccio and McCaffery said they believe voters are turned off by judicial activism.
McCaffery pointed to the decisions from the U.S. Supreme Court in the last year overturning the right to abortion at the national level and ending affirmative action in college admissions as examples of the harm judges can cause by abandoning the principles of justice for a political end.
“I think most Pennsylvanians, when you actually start talking to them and digging down, are very wary of judicial activism and they see activism right now at the United States Supreme Court,” McCaffery said. “People want somebody who’s going to stand up and defend the law and defend the precedent that’s in our Constitution and in our existing law.”
Carluccio said McCaffery’s public disagreement with the Dobbs decision, which reversed Roe vs. Wade, and statements in support of abortion rights veer toward judicial activism.
McCaffery has said he believes decisions about abortion are best made between a woman, her conscience and her doctor and that he would uphold Pennsylvania’s law permitting abortion up to 24 weeks of pregnancy.
“My opponent has been very clear that when it comes to abortion, he won’t follow the law. He’ll do what he thinks is best. And I think that’s a real distinction that really is going to erode our justice system in the long run,” Carluccio said.
Both candidates have received endorsements from organizations on either side of the abortion fight.
Carluccio received the Republican Party endorsement in the primary, and is endorsed by the PA Pro-Life Federation and Pro-Life Coalition of Pennsylvania, both of which oppose abortion.
In addition to an endorsement from Reproductive Freedom For All, the organization formerly known as NARAL Pro-Choice America, McCaffery has touted an endorsement from Planned Parenthood Action. Its political arm Planned Parenthood Votes has poured money into the race with a “seven figure” television ad campaign focused on what it describes as Carluccio’s anti-abortion positions.
In one ad, the group notes that a biography in which Carluccio described herself as a defender of the Second Amendment and “all life under the law” was scrubbed from her campaign website.
Carluccio attributed the removal of a link to the document to her campaign team’s decision to redesign the website before the primary election in May, but said she stands by the statement.
“In the bio it says that I will hold all life under the law and it means exactly that,” she said. “It means that the law provides that a woman has the right to choose up to 24 weeks in Pennsylvania. And that is the law that I will apply.”
Much of the $3.4 million that Carluccio’s campaign has reported is in $2.1 million worth of in-kind contributions from the Commonwealth Leaders Fund, a political action committee funded by billionaire GOP supporter Jeffrey Yass, campaign finance reports show.
Those expenditures on behalf of Carluccio’s campaign have included a mailer attempting to associate McCaffery with the pornographic email scandal that forced his brother Justice Seamus McCaffery and Justice Michael Eakin to resign from the Supreme Court in 2014.
Dubbed “Porngate,” the episode led to an investigation by former Attorney General Kathleen Kane’s office that eventually identified 13 high-ranking state officials and judges as “high volume” senders of inappropriate email.
Dan McCaffery was not among them.
“Voters are smart enough to understand that I’m my own person, and I’m my own man. I love my brother dearly. He made a mistake, and he paid for it with his career,” McCaffery said. “That said, the attorney general did an exhaustive investigation. I wasn’t even named in it.”
McCaffery called the mailer an effort to muddy voters’ perceptions. McCaffery said he recalls receiving one email, which was not pornographic, and he told his brother to stop.
“I said, ‘Please don’t send these to my work email.’ Period, end of story,” he said.
McCaffery said he’s not surprised by the intensity of the third-party messaging in the race, but noted that reproductive rights were not an issue until after the primary. He said that the attempts by the Republican party to deemphasize abortion ring hollow after the Republican-controlled General Assembly attempted to pass a constitutional amendment to outlaw abortion in a late-night session before breaking for summer recess in July 2022.
“When people see that and people hear that they want to know why you took one position in the primary and why you’re taking another position now,” McCaffery said.
Carluccio said she sees the money pouring in from the left as an effort to paint her as an extremist despite what she describes as her reputation as a moderate with a record of success in strongly Democratic Montgomery County.
“It’s a special interest driven race,” Carluccio said “And I don’t have that. I’m here for one purpose, and that’s to uphold the law and to make sure that justice is enshrined in our Supreme Court.”
McCaffery attributes the attention the race has received to the uproar surrounding the U.S. Supreme Court’s Dobbs decision, which came after three recent appointees had testified at their confirmation hearings that they would uphold Roe vs. Wade as settled law.
“You’re literally watching a mirror image of that happening in Pennsylvania right now,” he said, “which is really causing a lot of people to kind of sit up and pay attention to find out what’s going on.”
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