by, Lowman S. Henry
Chairman & CEO of the Lincoln Institute and host of the Lincoln Radio Journal
Were you to travel from sea to shining sea you would be hard pressed to find a state appellate court whose reputation has been more besmirched than that of the Pennsylvania Supreme Court. In recent years, justices have been forced to resign for, among other things, sending sexually and racially inappropriate emails, using public office for campaign purposes, and other activities unbecoming a justice on the state’s highest court.
The resignations of Justice Michael Eakin and Seamus McCaffery in what the media dubbed the “porngate” scandal, and that of Justice Joan Orie Melvin for using her court staff to run campaigns, not only left the reputation of the Pennsylvania Supreme Court in tatters, but it created an opportunity for Democrats to politicize the state judiciary at the highest level.
Multiple resignations resulted in the unusual situation of having three seats on the seven member bench up for election in 2015. State Republicans were asleep at the switch as national Democrats, seeking ways to redraw congressional district maps, and their labor union allies poured millions into the race. They won all three seats and claimed partisan control of the court.
In the process, one justice in particular, Justice David N. Wecht, openly campaigned for the overturning of Pennsylvania’s congressional district map. Candidate Wecht, violating judicial ethics by opining on a case that was likely to come before him, made it clear he felt the state’s congressional district map was unconstitutionally gerrymandered.
Once on the bench, Wecht and three of his fellow justices made judicial laughing stocks of themselves by tossing out the supposedly gerrymandered map and replacing it with an even more gerrymandered map designed to advantage Democrats – which it did.
The justices had clearly trampled on the legislature’s constitutional power to draw congressional district lines. Representative Chris Dush urged impeachment of the justices saying the ruling “blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, (they) engaged in misbehavior in office . . . each is guilty of an impeachable offense warranting removal from office.”
Dush’s plea fell on deaf ears as the legislature lacked the political will to stand up for either its own powers or for the constitution. Thus did every institution in the judicial spectrum fail the people of Penn’s Woods: the legal community did not call out Wecht for his inappropriate campaigning, the Supreme Court trampled the constitution in the gerrymandering case, and the legislature let them get away with it.
Just when you might think it couldn’t get any worse along comes Justice Kevin Dougherty. Dougherty was one of the three justices that big labor and national Democrat money put on the court in 2015. His brother is Philadelphia labor leader and political powerbroker extraordinaire John “Johnny Doc” Dougherty.
A few weeks ago Johnny Doc was indicted on a wide array of corruption and embezzlement charges. The federal action also ensnared Philadelphia City Councilman Bobby Henon and six others. According to news reports Dougherty and Henon “orchestrated a long-running scheme to steal from the union, use the money improperly, and then attempt to cover up the misspent funds by falsifying federal documents.” WHYY radio also revealed that Dougherty allegedly used union coffers as a “slush fund for thieves and fraudsters.”
The question now becomes does Justice Dougherty fall into that category? We do know millions in labor union dollars were spent on the justice’s campaign for the high court. The Pittsburgh Post-Gazette has already reported that prosecutors say Kevin Dougherty received home repairs and other benefits and allege they were paid for by his now-indicted brother. No such payments were listed by the justice on his required state financial disclosure forms.
To be clear, Justice Dougherty has not to date been accused of any crime. But, as the investigation into his brother’s tangled web of union and political finances continues, and Johnny Doc ultimately stands trial, there is no doubt a dark cloud now hovers over the justice’s head, and by extension over the entire Supreme Court.
There is, unfortunately, no electoral remedy for the court’s current situation. Both Dougherty and Wecht were elected to ten year terms meaning it will be 2025 before they stand for a retention vote. Given the legislature’s unwillingness to act by impeachment, that means the justices will continue to have a major impact on hugely important matters – both legal and political – for years to come.
And that will cast a pall on every decision they render and continue to erode public confidence in both the judicial and legislative branches of our state government.