The Pa. Supreme Court race is ‘the biggest game in town,’ and groups are spending big on both sides

HARRISBURG — The race to fill a vacancy on the Pennsylvania Supreme Court is dominating airwaves and mailboxes across the state this fall.

That’s because both parties see it as a high-stakes race — and an important test.

The race between Republican Carolyn Carluccio and Democrat Dan McCaffery is the top statewide race on the ballot this November, with the winner expected to become a tie-breaking vote on election cases ahead of the 2024 presidential race. The results will also serve as a pulse check for how each party could fare in the crucial battleground state next year.

And outside groups are spending millions of dollars to influence the outcome — and the makeup of the court.

“It’s the biggest game in town,” said Stephen Medvic, the director of the Center for Politics and Public Affairs at Franklin and Marshall College. “In an off-year election, there’s a lot of money out there to be spent. And it’s going to be spent where the groups think it’s going to be consequential.”

The seven-seat court has been operating with a vacancy for the last year, after Chief Justice Max Baer died suddenly of a heart attack in October 2022. Since then, the 4-2 Democratic majority has deadlocked on a number of decisions, including mail ballot rulings — setting up the winner of the Nov. 7 general election to become a deciding vote in important cases.

The race between Carluccio, currently the president judge of the Montgomery County Court of Common Pleas, and McCaffery, a state Superior Court judge, has centered on abortion, mail voting, and election laws — issues with stark partisan divides that are likely to go before the court in the coming year. The court has made important election-related decisions in recent years about Pennsylvania’s mail voting laws, and abortion has become a key issue in state judicial races across the country since the U.S. Supreme Court overturned Roe v. Wade last year.

Both candidates are from Southeastern Pennsylvania, and both are hoping their judicial records and approaches will convince voters to elevate them to the state’s highest court.

McCaffery, 59, serves on the Superior Court, one of the state’s appellate courts, and said he’s written more than 600 opinions since joining its bench in 2020. The U.S. Army veteran from Philadelphia supervises all wiretap cases in the state and serves on the state’s Court of Judicial Discipline to investigate judges accused of violating their oaths. He previously served as a judge on the Philadelphia Court of Common Pleas, a civil lawyer, and a Philadelphia prosecutor.

“I’m running for the state’s highest appellate court, and I’m the only person in this race who has been an appellate court judge,” McCaffery said in an interview last week.

Carluccio, 63, the first female president judge in Montgomery County, was one of the last Republicans elected to the bench in 2014 before the county turned reliably blue. She was chosen among her peers to lead the court last year, and touts her work to cut the case backlog from COVID-19 pandemic closures much more quickly than other counties by implementing an innovative scheduling approach. Before that, she served in a number of roles in Montgomery County government, including as its deputy solicitor and public defender.

“A lot of people get nervous about making changes,” Carluccio said about her leadership on the Montgomery County Court of Common Pleas. “As long as I know they’re legal and they’re going to do a good thing, I’ll make that change.”

In interviews, the major difference the two candidates expressed in their judicial ideologies was what a Supreme Court justice should do when the law is unclear, or when the General Assembly fails to clarify the law. Carluccio said the court should follow the law as written, and said it is not the court’s role to fill in any gaps. McCaffery, meanwhile, said he believes it is the court’s duty to interpret the laws and their intent.

For example, McCaffery said the court did its job in 2020 when it created drop boxes and a three-day window for mail ballots to arrive to counties, while the court was widely criticized by Republicans for creating policy that did not exist in the law.

Pennsylvania is one of about seven states that has partisan judicial elections for its appellate courts, with a candidate’s political party appearing on the ballot. Elections are held to fill vacancies, and justices face retention votes every 10 years.

Both parties have focused on growing their majorities on the court, in anticipation of more high-profile election cases in 2024. Democrats hope to grow their majority before three Democratic justices are up for retention in 2025. Republicans have refocused their sights on growing their number of justices on the state Supreme Court in recent years to chip away at the Democratic majority.

Pennsylvania’s partisan judicial elections make them ripe for spending from outside groups.

According to the latest campaign finance filings from mid-September, McCaffery has raised more than $2 million from Democrat-aligned groups, such as unions and Planned Parenthood. Carluccio has raised more than $3 million, much of which comes from the Commonwealth Partners Chamber of Entrepreneurs’ various political action committees. One of their PAC funders is Jeffrey Yass, a Main Line billionaire and GOP mega-donor. Democrats have criticized Carluccio for receiving his support and potentially giving one man a leg up if an issue he cares about, such as school vouchers, comes before the court.

Carluccio said she has never spoken to Yass and is thankful for the Commonwealth Partners’ support.

“Nobody has asked me to do anything other than to follow the law,” she added.

Abortion-rights groups are pouring money into messaging that maintaining a Democratic majority on the court will protect abortion rights in Pennsylvania, where the procedure is legal through 24 weeks of pregnancy. The issue has been key in judicial races in other states, such as Wisconsin, where a liberal judge won earlier this year and flipped the balance of the state’s high court.

Democrats, including McCaffery himself, have attacked Carluccio for receiving the endorsement of two Pennsylvania anti-abortion associations, and removing her resume from her campaign website where she summarized herself as a defender of “all life under the law.”

“My personal opinion has absolutely no place in this,” Carluccio said. “The law in Pennsylvania is very clear that a woman has a right to choose up to 24 weeks. I will follow that law.”

Carluccio added that she’s never shared her personal opinion on abortion publicly “because it just doesn’t belong.”

“Where have we heard that before?” McCaffery asked, noting previous statements by U.S. Supreme Court justices who promised to follow the precedent set by Roe v. Wade, which they ultimately overturned.

“They all said the same thing,” McCaffery added. “They would follow the law. And they follow the law, right up until the point they changed it.”

Carluccio, in turn, criticized McCaffery for having a political agenda.

“He has said in the public that he will never allow abortion to be lessened,” Carluccio said. “That’s a lofty goal. But frankly, you should be running for the legislature or governor, not for the Supreme Court.”

McCaffery said that once he was elected judge, he checked his voter registration at the door.

“But you don’t check your values,” McCaffery said, noting his upbringing as a child of union workers in Philadelphia. “It’s who I am. It’s kind of what I am.”

Groups on both sides are running ads and sending mailers to attack the opposing candidate.

Mailers in the race funded by the Commonwealth Leaders Fund, a PAC linked to the Commonwealth Partners Chamber of Entrepreneurs, seek to link Dan McCaffery to his brother, who resigned from the state Supreme Court in 2014 amid state’s Porngate scandal. Former Justice Seamus McCaffery was the recipient or sender on more than 230 emails including inappropriate images sent around among the state’s top judicial officials.

One mailer cites a 2014 Inquirer article that reported Dan McCaffery received pornographic messages on his state government email from his brother, and responded telling him not to send that to his work email.

Dan McCaffery said he still loves his brother, whom he said paid for his mistakes with his career.

“But I think voters understand that I’m my own man,” Dan McCaffery said. “Voters are smart enough to understand that I’ve created my own career, I have my own record to run on, and that’s exactly what I’m running on.”

Carluccio, for her part, has been targeted by Planned Parenthood’s political action arm with a seven-figure TV ad buy suggesting she can’t be trusted to protect abortion rights.

“What’s happening here is special interest groups have taken hold of this race, frankly, and they have an outcome that they want,” Carluccio said. “I would hope that we do not have a justice on our Supreme Court that’s beholden to these special interest groups.”