There are many disturbing aspects to the new email allegations involving Pennsylvania Supreme Court Justice Michael Eakin.

  • There is the fitness of the justice to remain on the bench, in light of reports of racist and sexist emails.
  • There is the culture of insensitivity and unprofessionalism among judges, lawyers, and elected officials demonstrated by the hundreds of inappropriate emails that the public has now seen.
  • There is the chummy relationship between judges and prosecutors that undermines judicial impartiality.
  • There is the question of what emails embattled Attorney General Kathleen Kane held back.
  • And there is the future of the attorney general, given the suspension of her law license by the Pennsylvania Supreme Court.

At every stage of this scandal, the institutional arrogance of the state Supreme Court has made matters worse. Fortunately, there is something the voters of Pennsylvania can do about all this right now.

We are in the middle of an election of three new justices to the court. The voters should demand specific commitments from those candidates to change the way the court does business. No more bland pledges to bring back integrity.

The email scandal would have ended a year ago if the justices had followed the proper constitutional process.

In 1993, the voters adopted a judicial discipline amendment that created the Judicial Conduct Board to investigate and prosecute misconduct, and the Court of Judicial Discipline to decide the cases. The voters, disgusted by years of infighting on the Supreme Court, gave the court only a limited appellate role and no role at all in cases of alleged misconduct by fellow justices.

But the Supreme Court never accepted the authority of this independent system.

Just months after the voters gave the Court of Judicial Discipline the power to issue interim suspensions, the justices acted on their own to suspend Justice Rolf Larsen from the court.

In 2012, they acted again, to suspend Justice Joan Orie Melvin upon the filing of criminal charges against her, even though the Court of Judicial Discipline had already begun proceedings and only days later would issue its own interim suspension.

Then, in 2014, in a case involving Magisterial District Judge Mark Bruno of West Chester, the Supreme Court held that its authority in judicial discipline supersedes that of the Court of Judicial Discipline.

It was therefore no surprise that, in September 2014, when Attorney General Kathleen Kane first released improper emails to the media, Chief Justice Ronald Castille pressured her to send emails involving justices not to the Judicial Conduct Board for an independent review, but to the court itself, to be reviewed by its own hired expert.

Then, in a rush to judgment apparently timed to allow the Supreme Court to act before Castille's scheduled retirement, the court suspended Justice Seamus McCaffery, with whom the chief justice had been feuding for years, while effectively clearing Eakin of any wrongdoing. Days later, a deal was worked out allowing McCaffery to retire without further review of the emails that had led to his suspension.

Today, the court is still interfering with independent review. The justices have hired a second expert to review the new email allegations against Eakin, instead of staying out of it.

If matters had been handled the way the Constitution anticipates, all of the emails might have been uncovered and reviewed in 2014, and, more importantly, the Court of Judicial Discipline would have had the opportunity to clarify the legal standard under which improper emails by judges should be evaluated. The process would have been formal and transparent.

But the Supreme Court's overreaching does not end there.

The Pennsylvania Constitution provides mechanisms for the removal of elected officials-upon conviction of certain crimes, by impeachment and removal and by direct address of the Senate. Thus, there were constitutional avenues to deal with the criminal charges now pending against the attorney general. There was no need for the Supreme Court to involve itself.

Instead, the court temporarily suspended Kane's law license, thus making it impossible for her to conduct the business of that office as of Oct. 21. Despite the court's protestations, and despite Chief Justice Thomas Saylor's highly unusual statements to the press, this suspension could not have been entered without prejudging the criminal case against her. The court acted under a rule that is generally reserved for financial improprieties not alleged against her. I hold no brief for Kane, who should have resigned months ago, but she was treated unfairly.

The voters can stop this.

We must vote only for candidates who pledge to put judicial discipline back where it belongs, in the institutions the people of Pennsylvania created for the purpose. They must also pledge to reopen the suspension of the attorney general, and allow her criminal case to proceed and the legislature to act if it chooses.

Candidates for judicial office cannot discuss cases. But they are allowed to debate the administrative powers of the court. Let's have that debate at last.

Bruce Ledewitz is the associate dean of academic affairs and a professor of law at the Duquesne University School of Law.  ledewitz@duq.edu
The seven candidates for Pennsylvania Supreme Court — Republicans Anne Covey, Michael George, and Judith Olson; Democrats Christine Donohue, Kevin Dougherty, and David Wecht; and Independent Paul Panepinto -- are scheduled to debate 5 to 6:30 p.m. Wednesday at the Widener University School of Law in Harrisburg. PCN will broadcast the debate live.