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Max Baer has talked his way onto the Pennsylvania Supreme Court. After unabashedly taking stands on politically volatile issues from abortion to tort reform, the Democrat Allegheny County trial judge was elected last week to an open seat on the state high court. Last year, judicial campaign restrictions were loosened by the U.S. Supreme Court. It said candidates were free to announce their positions on disputed legal or political issues. The Pennsylvania election, the country’s only state supreme court contest this fall, became a testing ground for the decision. Republican Party of Minn. v. White, 536 U.S. 765. Baer told voters he was pro-abortion rights, against capping tort judgments, in favor of the death penalty and labor unions and opposed to gun control. Being so forthright “absolutely” won votes, he said after the election. Major newspapers endorsed him and praised his openness. In a televised debate just before the election, his position-taking became a focal point, Baer said. “It’s better that the public knows what you stand for,” though taking stands requires some explaining, he said. A Pennsylvania judicial rule prohibits candidates from making statements that commit or appear to commit them on matters likely to come before the court. That meant Baer had to say he was just describing his personal beliefs, not predicting how he would decide a case, he said. Baer’s opponent, Joan Orie Melvin, a Republican state appellate judge, refrained from stating her positions. She said that doing so would create expectations about how she would vote as a justice, despite any explanation of the difference between personal and legal opinions. Couldn’t have hurt If Melvin had been more open with her supporters, “I certainly don’t think it could have hurt her,” said David W. Patti, executive director of Pennsylvanians for Effective Government, a pro-business political action committee. “It did help” win Baer votes, Patti said. Predictably, Baer’s views attracted opposition from doctors, pro-business and anti-abortion groups, which campaigned for Melvin. Even with such formidable groups in opposition, Baer won the partisan election with about 52% of the vote. What defeated such normally powerful political forces? Turnout, said Lynn Marks, executive director of Pennsylvanians for Modern Courts and a critic of judicial elections. Democrats in big cities turned out in droves to vote on hot local issues, she said. Among them was the Philadelphia mayor’s race, in which Democrats came out to support the incumbent mayor whose office was under surveillance by the Federal Bureau of Investigation. “It really affected the outcome,” Marks said of the high turnout. “That just trumped everything.” That’s one of the problems with electing judges, Marks said. Issues irrelevant to the candidates’ qualifications, such as their party affiliations, determine who gets to be judge, she said. For Democrats, the Supreme Court election was a major cause, said political analyst Randall M. Miller, a St. Joseph’s University history professor. It was a chance to rebuild a statewide organization that had been thumped by Republicans who had filled nearly every statewide office, he said. For many voters, the Supreme Court election was at the top of the ballot, which is unusual for a judicial election. Both candidates ran television advertisements, financed by more than $2 million in combined funds, Miller said. It was surprising to hear a judicial candidate take real positions, he said. “I think both did make an imprint as no other judicial race has ever made,” he said. And it’s “quite possible” others will follow the Baer playbook. “Nothing succeeds like success,” Miller said. Next year, more than 60 Supreme Court incumbents in more than half the states face re-election. “I suspect candidates in other states will look carefully at what happened in Pennsylvania,” said Marks, the Pennsylvanians for Modern Courts director.

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