By David Loomis
That may be hard for some Republicans to imagine in a county that went for Trump by more than 2-1 on Nov. 3 and that elected state legislators who endorsed an effort to overturn the commonwealth’s Electoral College vote – a move popular among the extremist, insurrectionist, Jan. 6 U.S. Capitol mob.
Not to worry. Supposedly non-partisan is how primary elections for county Common Pleas Court judges – and for magisterial district judges and for school board directors – are conducted in Pennsylvania. Candidates in these races (and only these races) can cross-file — that is, their names can appear on both Republican ballots and Democratic ballots in primary elections, such as the one scheduled for May 18.
So, for example, former county district attorney Patrick Dougherty, the only registered Democrat seeking the county Court of Common Pleas seat, will appear on both parties’ May 18 primary ballots. But that’s not what bothered county GOP chair Randy Degenkolb in his April 30 letter to the editor. (The two Republican candidates opposing Mr. Dougherty are likewise cross-filed.)
Rather, the bother about Mr. Dougherty’s campaign is a flier he mailed to Republican voters that depicts him as “a proven conservative.”
“BLUE LIVES MATTER,” reads the Dougherty mailer that arrived in mailboxes as the Derek Chauvin murder trial was reaching a verdict. “Our police are under attack in the media,” the 8.5- x 11-inch full-color mailer continued. “I’ll stand up for the police. I am proud to say blue lives matter now more than ever.” (His italics.)
The flier’s flip side adds that Dougherty is “100% pro-life, pro-2nd Amendment, pro-police.”
Mr. Degenkolb’s fear is the partisan confusion that cross-filing invites. Conservative voters might associate Mr. Dougherty’s asserted conservative positions with Republican Party gospel and cast their ballots accordingly.
True, Mr. Dougherty’s apparent partisan political gambit could boost his candidacy. If he sweeps the primary elections, he’s likely to win unopposed in the November general election. His calculation may reflect a hard lesson learned in his narrow 2019 loss in a bid for reelection as district-attorney after a campaign he described as unduly negative.
But Mr. Degenkolb misses a broader concern: In his latest effort to reach the county bench, Mr. Dougherty could just as well emphasize his ample legal experience and public service. Instead, his “conservative” campaign mailer risks violating the spirit and the letter of state law governing campaigns for elective judicial offices.
— “A judicial candidate shall not … make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending in any court….”
— “judicial candidates must, to the extent reasonably possible, be free and appear to be free from political influence and political pressure.”
— “The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine whether the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.”
Those provisions tend to encourage anodyne campaign statements that read like resumes to avoid perceptions of bias on the bench. Such perceptions are not abstractions.
Recall the 2019 lament by U.S. Supreme Court Chief Justice John Roberts that public faith in the judicial branch was weakening from verbal assaults by the president and other federal politicians. That was before the judiciary – including state and federal courts in Pennsylvania – distinguished itself as a democratic bulwark against the loser’s mendacious judicial blitz following his 2020 electoral humiliation.
But the largely frivolous lawsuits following the November election are part of a bigger story about the nation’s courts. As told by a 2016 study by the non-profit Brennan Center for Justice at the New York University Law School, “Judicial selection has become increasingly politicized, polarized, and dominated by special interests — particularly but not exclusively in the 39 states that use elections to choose at least some of their judges.”
“Pennsylvania’s 2015 supreme court election for three open seats exemplifies many of the problems with judicial selection today,” the 37-page report continued. “The election, which set a new spending record for state supreme courts, was largely funded by business interests, labor unions, and plaintiffs’ lawyers — all groups that are regularly involved in cases before the court Millions of dollars went into negative ads that characterized candidates as issuing ‘lenient sentences’ and ‘failing to protect women and children’ — amid growing evidence that such attacks make judges more likely to rule against criminal defendants. And, in a state where people of color make up more than 20 percent of the population, none of the 2015 candidates in the general election was a racial or ethnic minority, and the Pennsylvania Supreme Court remains all-white.”
This year, Pennsylvania’s Republican-dominated legislature, angered by rulings of the Democratic-majority state Supreme Court, advanced a plan to remake the court by putting a constitutional amendment on the ballot to elect the justices by region, rather than statewide. That would turn the court into a kind of legislature while improving the prospects of flipping the court’s majority. For now, the plan awaits further legislative action.
The Indiana County Court of Common Pleas is part of the state judicial system. State courts are where 95% of all cases originate. It is easily conceivable that the timely issues enumerated in Mr. Dougherty’s campaign mailer – gun rights and police procedure, for example — could come before the court.
But if he were to win a seat on the court, citizens who appear before Mr. Dougherty would have reason to wonder:
— whether he is “free or appears to be free from political influence”;
— whether his campaign statements “would reasonably be expected to affect the outcome or impair the fairness of a matter pending in any court”;
— whether his campaign statements were made to “reach a particular result.”
Mr. Dougherty did not respond to an April 26 email seeking comment.
TO AVOID EROSIONS of public confidence in the local courthouse, Mr. Dougherty can easily recast his overly politicized campaign advocacy as the state’s judicial-conduct Canon 4 advises: Characterize the statements as strictly personal and acknowledge “the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.”
Additionally, he could embrace reform of Pennsylvania’s process of judicial selection, as recommended by the 2016 Brennan Center report. For example:
— mitigate the impact of money on judicial elections
— institute merit selection instead of judicial election
— facilitate gender and ethnic diversity on the bench
And he could invite his cross-filed Republican campaign opponents to join the non-partisan effort.
David Loomis, Ph.D., emeritus professor of journalism at Indiana University of Pennsylvania, is editor of The HawkEye.
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