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Two Supreme Court nominees under fire

The fate of a Centre County Court judge whom Gov. Wolf nominated for Pennsylvania's highest court was unsettled Friday as legislators and others questioned whether an e-mail he sent was racially insensitive.

Thomas K. Kistler faces questions over a racially insensitive e-mail, while Ken Gormley was a target of a 2006 harassment complaint.
Thomas K. Kistler faces questions over a racially insensitive e-mail, while Ken Gormley was a target of a 2006 harassment complaint.Read more

The fate of a Centre County Court judge whom Gov. Wolf nominated for Pennsylvania's highest court was unsettled Friday as legislators and others questioned whether an e-mail he sent was racially insensitive.

Wolf told The Inquirer that he had not seen the e-mail forwarded by Judge Thomas K. Kistler.

"We're looking into it, and I'll be making a decision once I'm confident that I know all the facts," Wolf said in Washington, where he was attending a governors' conference.

At the same time, questions also emerged about a harassment complaint once filed against Wolf's other nominee for the high court, Ken Gormley, a dean at the Duquesne University School of Law in Pittsburgh.

Neither Gormley nor Kistler returned calls seeking comment Friday.

The Inquirer reported Friday that an e-mail was sent in December 2013 under Kistler's name titled "Merry Christmas From the Johnsons." The message depicted a black man and a black woman during what appears to be a jail visit. The man, smiling and wearing an orange prison uniform, sits behind a glass window.

Forwarded with a subject line that read "Best Christmas card ever," the message also includes cartoon depictions of Santa Claus and reindeer.

Kistler, 57, a Republican, said Thursday night that he could not recall sending it but did not deny forwarding it. He confirmed to the State College Centre Daily Times on Friday that he had forwarded it but maintained that there was "absolutely no ill intent."

It was not immediately clear if the e-mail was from his judicial account. The 22 recipients appeared to be mainly people involved in the criminal justice system, including prosecutors.

He told The Inquirer on Thursday that if he did send the e-mail, it was not meant to mock black people but to convey that "Christmas goes on, even for the people we put in jail."

Kistler said he did not view the e-mail as funny. "I don't think it conveys humor at all. I don't find that humorous," he said. He also said the included message - "Touching and heartwarming. Merry Christmas to ALL! JK"- did not sound like something he would have written.

"I can't imagine I would type touching Christmas story," Kistler said.

As news of the e-mail spread, legislators expressed concern about the nomination.

"This is unfortunate," said Sen. Daylin Leach (D., Montgomery), the ranking Democrat on the Senate Judiciary Committee, after viewing the message. "That is the court of last resort for ensuring justice and equality in Pennsylvania. It is important not only that they do justice but that they are perceived to be fair and interested in doing justice. I don't know Kistler well enough to know if this is a pattern or an aberrant incident. I am troubled by what we've seen thus far."

Rep. Dwight Evans (D., Phila.), who is close to Wolf, said he believed the e-mail "shows a person who is out of touch."

The message, Evans said, also raises questions about the sender's judgment. "What were you thinking and why?" he said.

The image in the e-mail appears to have originated on Facebook and has since been appropriated into the fake Christmas card, found easily by a search engine.

Kistler has been president judge in Centre County since 2012. He was first elected a judge in 1997 and previously worked in private practice. He earned his law degree from Pennsylvania State University's Dickinson School of Law.

Kistler said he had no personal issues with black defendants and said that Centre County was diverse, compared with neighboring counties, when the population of Pennsylvania State University is considered.

Asked if the e-mail should affect his nomination to Pennsylvania's highest court, Kistler responded: "I don't believe so."

Kevin Mincey, a Philadelphia lawyer and former president of the Barristers' Association in Philadelphia, a professional organization for African American lawyers, said, "I think it's hard to determine from one forwarded e-mail or meme whether someone is racist or not, but I certainly understand how it would seem offensive to some people."

If confirmed, Kistler would serve as a justice until after a replacement is elected in November. Gormley, a Democrat, would also serve only through this year. But his nomination was also facing scrutiny.

In the last week, copies of an internal university report about a complaint filed in 2006 against Gormley and another law professor were anonymously distributed to members of the Senate Judiciary Committee, who first vote on Supreme Court nominations.

The internal Duquesne University report concluded that Gormley should not supervise women because he had shared "an unsubstantiated rumor" about a female professor's personal life, according to a copy obtained by The Inquirer. The university later said the report was flawed and defended Gormley.

The report that was circulated to senators about Gormley was cited in a lawsuit the professor filed against him and the university in 2010.

In the suit, the professor alleged that she had been unfairly denied an opportunity for a tenured position in the law school because she was female and was subjected to retaliation when she complained.

The plaintiff, Alice Stewart, also filed a complaint of sexual harassment against Gormley, but quickly withdrew it.

The suit was settled in 2010, four months after Stewart sued. She and the university agreed to keep the terms secret.

A lawyer for Stewart declined to comment Friday.

A Duquesne spokeswoman said Friday that the harassment complaint had been dismissed by the Equal Employment Opportunity Commission and that the university was "deeply troubled" that internal confidential documents were being circulated.

"It would constitute a manifest injustice if this eight-year-old material and the allegations contained therein . . . in any way adversely impacted the appointment of Dean Gormley to the Supreme Court," said Bridget Fare, an associate vice president for public affairs.

In naming them, Wolf called Kistler and Gormley "two extremely qualified and distinguished individuals."

Their confirmations require two-thirds approval from the Senate, which means senators from both parties would have to approve.

Kistler and Gormley were nominated by Wolf this month to fill high-court vacancies after Chief Justice Ronald D. Castille and Justice Seamus McCaffery retired. McCaffery stepped down last fall amid an investigation into e-mails he sent from a private account that contained sexually explicit content.

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Inquirer staff writer Jonathan Tamari contributed to this article.