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The 2007 judicial elections were significant for a number of reasons, most notably the success of female candidates, the reduced effect from the pay-raise fallout, and Pennsylvania’s glaring lack of diversity on its appellate courts. It was a transition election as far as judicial races go. It was really the first one post-pay-raise fiasco, as well as the first one since 1995 in which we saw more than one seat open on the state Supreme Court. The impending retirement of Chief Justice Ralph J. Cappy only underscored the change inherent in this election. More than anything, this year’s election provided a lot of evidence of where this state is headed politically, even if that evidence doesn’t appear to be obvious Women may still be in short supply in upper management at some of Pennsylvania’s biggest firms, but they owned this judicial election, winning four out of five open spots. If not for the overwhelming popularity of Superior Court Judge Seamus McCaffery � boosted by an energetic and populist campaign � women would have won all the open slots. That’s because the difference between winner Superior Court Judge Debra Todd and her colleague Superior Court Judge Maureen Lally-Green was only 2.2 percent. Both women in the Supreme Court race were safely behind McCaffery � but comfortably ahead of fourth-place finisher Mike Krancer. The numbers were even more interesting for the Superior Court races. If you look at the county-by-county results, women candidates fared consistently well. Even in those counties that were dominated by one party � meaning all of the top three finishers were Republicans or Democrats � the candidate in fourth place was almost always one of the women. The question is: Why? The first thing to understand is that the results shouldn’t be too surprising. Women have been faring particularly well in appellate races since the mid-1990s and a number of people thought they would do well this year. Part of the reason cited was the attention paid to Justice Sandra Schultz Newman’s retirement, and that with her departure the high court would have no elected female justices sitting on it. The attention to gender on the high court was seen as a boost to female candidates for the lower courts as well. Another reason cited by many is the idea that voters see women as less political, and that post-pay raise, people wanted to vote in judges they assumed would be less inclined to get wrapped up in the power of the position. Right or wrong, I think there’s a lot of truth to that, at least based on my conversations with folks. Some might find that sentiment patronizing. Others, naive. But I think it reflects a positive perception � off-the-mark or not � voters have of women judges. Is it such a bad thing if voters tend to think that women judges are less political and capable of being more fair and impartial when deciding cases? Call me crazy, but I don’t think so. Male candidates have benefited for years because of voter stereotypes regarding the perceived strength or assertiveness or toughness of male politicians. Why shouldn’t women? Perhaps the 2007 election results � again, minus McCaffery’s uber-popularity � are an indication that those old perceived stereotypes regarding male candidates no longer apply. Or that voters are looking for a different set of qualities � such as patience, intellect, careful reasoning and fairness � when picking judges, and they more readily identify those qualities in the women candidates. Just look at the county-by-county results and you’ll see that it isn’t a regional thing or trend particular to the cities or the suburbs. Pennsylvania voters are more than happy to put more women on the bench. Given the results in 2007, there’s no reason to think that trend won’t continue. When it comes to racial diversity on our appellate benches, Pennsylvania is a disgrace. In 2008 we will have exactly two non-white elected judges on the appellate courts. Clearly not a statistic anyone should be proud of. Following the election, some argued the lack of racial diversity was proof of prejudice in the electorate, that voters just won’t “pull the lever” for minority judges. A number of well-meaning people hold that view. With all due respect, I think they’re missing the point, and in the process pointing their fingers at the wrong people. The blame should really fall on the political parties. The voters can only pick from what the parties give them. Open primaries rarely seem like they really are anymore, because once the parties endorse candidates, that’s where most of the money and attention goes. The voters simply follow. In this election, there were two minority candidates, both for Superior Court: John Younge and Cheryl Lynn Allen. Allen got elected and Younge didn’t. I’m sure a lot of people are disappointed in that result. But look at it this way: there were four white men running for five appellate court seats. Only one white man, McCaffery, won. Minority candidates had a higher rate of success than white men. Keep in mind too that most voters know very little about the candidates, and coverage in the general press is meager and superficial at best. It’s doubtful that the majority of voters, particularly with races other than those for the Supreme Court, are aware of the ethnic background of the candidates. Prejudiced voters would have to work pretty hard or guess well to avoid pulling the lever for minority candidates. The county-by-county results suggest to me that what often determined the outcome in each county was gender, party domination and regionalism � not race. It should also be noted that Allen did quite well in a number of rural and conservative counties, the kinds of places that are supposedly not too receptive to minority candidates. The parties, though, are another story. They need to field diverse candidates for the primaries, something they haven’t consistently done. They also need to try harder to endorse and truly back minority candidates, rather than let them in the race, then throw all their money and support behind white candidates. No one is looking for a gift, just a fair shot. What voters should do is pressure the parties into understanding that the days of just rubber-stamping all-white campaign tickets needs to go. Sanity prevailed and the push to get all the judges up for retention booted from the courts failed. The push was doomed to fail, because it struck many of the people who had been angered by the all the shenanigans pertaining to the pay raise and its aftermath � the press and the general public � as mindless, overly broad and excessive. At the end of the day, citizens are far smarter and more reasonable than most politicians and movement die-hards give them credit for. The pay-raise fiasco reeked and the voters called those in power on it, regardless of how much pay-raise defenders blathered on about its necessity. In a similar fashion, the move to oust all the judges came across as senseless and the voters rejected it, no matter how much that movement’s leaders cried that the courts needed to be purified. The people know a bad deal when they see one. However, despite what some have suggested, I don’t know that the pay-raise fallout is gone. I think the failure of the anti-retention push is more a reflection of how reform groups over-extended themselves and blew a lot of their influence and political capital on a cause few average voters were going to embrace. In other words, it was more of a failure in strategy and message on the part of reform groups than a dissipation of voter anger over the pay raise. There are two reasons to support that. First, a number of knowledgeable people I spoke with believe that had the reform groups been more selective in targeting judges, i.e., if they had just picked a few they thought needed to go and hammered them, they would have succeeded, based on things they heard around the state. Second, simply look at the success of Seamus McCaffery’s campaign. Forget the digs people make about him for a second. He was clearly the big winner in the Supreme Court race. You can chalk up a lot of that to money, press and charisma, but the bow that tied up the whole package was McCaffery’s populist stance. In almost all of his ads, both print and television, McCaffery made a bid for the voters of all parties to support him, casting it almost as his battle against the establishment. He also told voters that some judges forget where they come from, but he never would. That populist message obviously resonated with voters. Why? I’d argue it was the anger still out there simmering following the pay-raise fiasco. What this suggests is that the pay-raise anger, like most natural resources, has a finite quantity, but one all elected officials would be foolish to ignore. Hank Grezlak is the editor-in-chief ofThe Legal Intelligencer . He may be contacted at 215-557-2486, or by e-mail at [email protected].

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