The Never-ending Judicial Scandals

Philadelphia NOW, Pennsylvania NOW, and Americans for Democratic Action have voted to oppose the measure on the April 2016 primary ballot to raise the retirement age for Pennsylvania judges from 70 to 75.

There are many good reasons to oppose the retirement age, some of which I noted in Why I’m voting against raising the retirement age for PA judges.

Judges routinely win retention elections despite well-publicized examples of incompetent, corrupt behavior. Mandatory retirement at 70 is one of our few opportunities to get rid of these judges and make room for candidates who bring new perspectives and experiences to the bench.(Judges have the opportunity to work part-time in retirement, so those who have much to offer can continue to do so on a part-time basis.)

If the retirement age is raised, there is real danger that we will delay the transformation of the judiciary into something more closely resembling what America now looks like. The cohort of judges now reaching 70 are much more likely to be white, male and heterosexual than the pool of potential judges, now in their 30’s and 40’s. (It’s only relatively recently that open LGBTQ candidates have run for and won judicial seats.)

As a recent Daily News editorial. acknowledges: "The state's courts (and elected offices) are crying for more diversity - not only in gender but in race. Diversity doesn't eliminate bad behavior, but it makes it more difficult to sustain the kind of insular culture that can encourage the sense that "everyone does it," no matter how bad "it" is."

The ever-widening scandal has made the case for reform more urgent than ever. According to the Philadelphia Inquirer, Pennsylvania Supreme Court Justices Max Baer and Kevin Dougherty were among the many judges and court officials who received misogynistic, racist emails circulating through the judiciary. The emails received by Baer and Dougherty were sent by former Supreme Court Justice Seamus McCaffery who also sent offensive emails to about 15 Common Pleas Court judges and court administrators across Pennsylvania.

From what we can glean from news reports so far the only recipient of these emails who formally protested was former Chief Justice Ronald D. Castille who told the Inquirer that in 2010 he had asked McCaffery to stop sending him inappropriate emails. Castille sent an email to McCaffery, with copies to all other justices, “warning him that his emails could end up embarrassing the court.” But why didn’t he take the further step of calling for an investigation by the Court of Judicial Discipline?

The recipients of the emails have been defended as “victims” who might not even have opened the emails. However, these emails have subject headings which give some indication of their contents:

posted at PA Penn live

Also thanks to Castille’s letter condemning McCaffery emails, it was generally known that he sent racist, misogynistic material on government computer systems. When Baer and Dougherty and others received these emails--even if they did not open them—they surely were aware the emails had nothing to do with court business. By averting their eyes, they were complicit in the widespread failure to challenge the old boy network. This is not what we expect from a Supreme Court Justice.

Voters have the right to know the identity of the other 15 judges who in the best interpretation of their behavior took the “hear no evil, see no evil” approach and like Baer and Dougherty were at least passively complicit.

McCaffery, apparently the primary offender, continues to defend both senders and recipients of the hate-filled emails: According to the Inquirer, he claimed he and others involved in the email exchanges had been wrongly criticized: "It was all harmless banter between friends." McCaffery’s characterization of the emails as harmless banter raises questions about the relationships among the judges involved. Davie Davies reported on concerns raised by former U.S. Attorney Pete Vaira:

"Wait a minute," Vaira said. "All these people are exchanging ex-parte communications of something very nasty and sensitive. What do they do otherwise?"
In other words, you wouldn't send raunchy stuff like this to just anybody. It would go to somebody you know well enough to trust with material that could embarrass you, maybe even get you fired.
If judges and prosecutors and lawyers were doing this over a period of years, Vaira said, were they also having improper conversations about cases?

Both Vaira and Ron Castille have called for an investigation to determine if this has occurred. Davies points out the difficulty of finding a truly independent investigator, given how many members of the judiciary have been embroiled in the scandal--e.g., the chief counsel for the State Judicial Conduct Board was cited for conflicts of interest in the Eakin case.

Confidence in the judiciary has been badly shaken as the Inquirer report of Mallissa Weaver’s case clearly illustrates:

Mallissa Weaver knew she faced long odds when in 2008 she sought to convince the Pennsylvania Supreme Court that unrelenting sexual harassment by her former boss was so egregious that the justices should overturn a state law that barred her from suing for discrimination.
Much as she expected, she lost. She left her job at a small financial planning office in rural Snyder County and resolved to put the experience behind her.
But as the statewide Porngate scandal continues to widen, Weaver is finding it more difficult to remain at peace with the outcome of her case.
"It's so frustrating to think about," Weaver, 48, said in a recent interview from her home in Kreamer, some 50 miles north of Harrisburg. "There I was complaining about degrading sexual treatment from my boss. Now, I found out that the judges were making the same types of jokes about women while they were deciding my case. How am I supposed to believe I got a fair shake?"
She's not the only one asking that question.

Judges have enormous power over people’s lives. Those who wield that power must be above reproach. We must have an independent, unbiased investigation of the email scandal and, in the long term, thoroughgoing reforms of the judicial system. In the meantime, let’s not freeze the current judiciary in pace by raising the judicial retirement age to 75.