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Republican changes TV attack ad in Pa. Supreme Court race after criticism

The controversy over the ad underscores how Pennsylvania’s partisan judicial elections can be just as contentious as campaigns for any other office.

The candidates in the 2021 Pa. Supreme Court race, Democrat Maria McLaughlin, left, and Republican Kevin Brobson.
The candidates in the 2021 Pa. Supreme Court race, Democrat Maria McLaughlin, left, and Republican Kevin Brobson.Read moreCourtesy of Maria McLaughlin (left); TYGER WILLIAMS / Staff Photographer (right)

The Republican nominee for state Supreme Court has changed a TV ad days after the Pennsylvania Bar Association said it had violated its standards.

The new version of the ad paid for by Republican Kevin Brobson’s campaign includes more context in its criticism of Democrat Maria McLaughlin and removes outright one charge leveled at her, the Associated Press reported.

The updated commercial no longer contains a claim that one of McLaughlin’s “largest donors is indicted by the FBI for political bribery.” This was a reference to campaign money from a political fund controlled by John Dougherty, a Philadelphia labor leader now on trial in federal court.

The newer ad continues to criticize McLaughlin’s ruling in an appeal of a conviction of a drunk driver who killed a pregnant woman. But it notes that she joined another judge in the majority opinion.

An adviser to Brobson, president judge of Commonwealth Court, told the AP the changes were made in response to the bar association’s communications.

The bar association declined to comment on its internal proceedings beyond to say that it investigates the complaints thoroughly and that confidentiality is “paramount.”

The controversy over the ad — which criticizes McLaughlin’s ruling in an appeal of a conviction against a drunk driver who killed a pregnant woman — underscores how Pennsylvania’s partisan judicial elections can be just as contentious as campaigns for any other elected office, despite the judiciary’s high-minded ideals.

» READ MORE: Powerful special interests are pouring millions into the 2021 Pa. Supreme Court race

The secrecy surrounding the proceedings does not help voters select the best jurists, said Khalif Ali, executive director of Common Cause Pennsylvania, a nonprofit group that promotes accountability in government.

“To, behind closed doors, chastise an individual for ethics breach is not enough,” he said. “It needs to be publicly known, and there needs to be some type of real penalty.”

That’s because there are countless legal issues that have the potential to reach the state’s high court.

“I need to know who I’m putting in those positions, to judge these huge cases that are going to impact hundreds of thousands if not millions of lives in Pennsylvania,” he said.

The original version of the Brobson ad, which started airing Oct. 18, says McLaughlin, a Superior Court judge, “chose to void the guilty plea of a drunk driver who admitted to killing a pregnant woman and her unborn child.” It did not explain the context behind the decision in the case, Commonwealth v. Mosey: Sitting on a three-judge appeals panel, McLaughlin sided with another judge that the driver had received inadequate counsel before pleading guilty.

They set aside the conviction and sent the case back down to the trial court level for reconsideration; the defendant still ended up pleading guilty and remains in state prison.

The new version of the ad adds that McLaughlin cast the deciding vote in a 2-1 decision and sided with the judge who wrote the majority opinion, not the dissenting judge, who wrote that the guilty plea was proper, the Associated Press reported.

In a letter obtained and first disclosed by The Inquirer, the Bar Association’s committee on judicial campaign advertising concluded the initial ad violated its guidance that campaigns should “refrain from making statements that might be subject to misinterpretation or distortion” and “should not omit or obscure information necessary to prevent misinterpretation.”

The Oct. 23 letter said the bar had “directed” Brobson’s campaign either to “immediately withdraw” the ad or issue a news release clarifying provisions deemed to have violated the guidelines. The bar asked Brobson to respond by that Monday.

A private organization, the bar lacks governmental authority and cannot compel candidates to do anything. But it serves as the preeminent statewide trade group for lawyers, one that says it is dedicated to supporting a fair and impartial legal system.

Both Brobson and McLaughlin had signed pledges to adhere to the guidelines — which are intended to help maintain the public’s confidence in the judicial system — as a condition for participating in the bar’s evaluation process. Those same pledges commit the candidates to confidentiality.

Both had been designated as “highly recommended” by the bar association. It’s a label that often carries outsize influence in judicial campaigns that otherwise don’t get much attention — in part because judges are restricted from political campaigning or taking positions on cases or issues that may come before them — and one the association has the right to rescind if it deems a candidate has violated its canons.

» READ MORE: Pennsylvania elects most judges. Here’s how the process works.

Brobson’s campaign has maintained the ad is accurate and described the alleged violations as “picayune.”

In a statement Thursday to The Inquirer, Brobson’s campaign did not address whether the bar had resolved the dispute. But it said he respects the bar’s confidentiality pledge “and will honor it.”

“We suspect the PBA Judicial Candidate Advertising Committee is just as concerned as we are about this breach of confidentiality and is working on identifying those responsible,” the statement said.

After a version of this article published online Friday morning, the campaign notified The Inquirer that the ad had in fact been updated.

For its part, the McLaughlin campaign aired a new TV ad this week in which the judge says: “You may have seen some ads attacking me. Let me be clear: They are false and misleading. ... Sadly my opponent is silent, while his supporters lie and spend millions to buy the court. And that silence says everything.”

McLaughlin’s campaign manger, Celeste Dee, said she also hopes the bar finds the source of the leak. “We are equally hoping the Bar Association addresses the fact that a candidate is using his own funds to misrepresent and undermine the judicial decisions of Judge McLaughlin,” she said.

Patrick Christmas, policy director of the Philadelphia-based good government group Committee of Seventy, said the issue over the ad highlights “the fundamental problem” with the state’s system of selecting judges through partisan elections — rather than a merit selection process involving appointments.

“The obscene amount of money that flows into these races now, the acute politicization of the races, and the messaging around them is toxic, and is a real disservice to the voters,” he said.