Wolf's effort to fill Supreme Court vacancies collapses

HARRISBURG - Gov. Wolf's efforts to fill two vacancies on Pennsylvania's Supreme Court collapsed Monday after one nominee withdrew his name from consideration following a controversy over an e-mail he sent and the other was left in political limbo.

Centre County Court Judge Thomas K. Kistler said he was removing his name from consideration after coming under fire last week for an e-mail that some viewed as racially insensitive.

With Kistler's withdrawal, Senate Republicans moved swiftly to cancel the confirmation hearing for Wolf's second nominee, Ken Gormley, a dean at the Duquesne University School of Law in Pittsburgh.

Wolf said later that he does not plan to name new nominees and that the two vacancies on the high court would remain until November's election.

Wolf called the failed nominations a learning experience.

He said he had tried to follow the "conventional way" of filling Supreme Court vacancies: turning to the Senate, which must confirm nominees, for recommendations. The two prospective justices were a package deal, with Kistler championed by Republicans who control the chamber and Gormley by Democrats.

"I was trying to give the conventional way you do things in something like this - you know, a Republican and a Democrat - and try to make that work," Wolf said Monday in an interview in Washington, where he was attending a governors' conference.

He added: "And I think I learned a lesson: Do my own vetting and make sure I'm doing the right thing as far as I can tell, not try to make the deals."

Given that the high court is scheduled to begin hearing cases early next month, administration officials said naming new nominees now would not give the interim justices sufficient time to prepare for the work ahead.

The Supreme Court will continue operating with five justices - three Republicans and two Democrats - until the elections.

The fallout came three days after The Inquirer reported that an e-mail had been sent under Kistler's name in December 2013 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 included cartoon depictions of Santa Claus and reindeer.

Kistler later confirmed he had forwarded the message, but maintained that he had no ill intent.

Legislators and prominent lawyers criticized the e-mail as racially insensitive and said it raised questions about Kistler's fitness for the state's highest court.

In a statement announcing his withdrawal Monday, Kistler, the president judge in Centre County since 2012, made no mention of the e-mail or the furor surrounding it.

Instead, he said that "several circumstances have developed here, at home, in Centre County, which have dramatically altered the legal system and require my full attention." He did not elaborate.

Wolf chose Kistler and Gormley to fill two high court vacancies when Chief Justice Ronald D. Castille and Justice Seamus McCaffery retired late last year. McCaffery stepped down amid an investigation into e-mails he sent from a private account that contained sexually explicit content.

Kistler's statement thanked Wolf and Sens. Jake Corman (R., Centre) and Jay Costa (D., Allegheny) "for their confidence in my ability to serve" on the court.

But, he said, "my primary concern has to remain the full and proper functioning of the Centre County Court. Had the current circumstances been known in November, I would have not offered my name for nomination."

Gormley said in a statement that was "disappointed" to hear about Kistler's decision to withdraw from consideration. Gormley said he was ready to serve if Wolf and the Senate decided his nomination should go forward.

"I am willing and eager to serve in this important position of public service, if I am able to make a meaningful contribution to the court's important work," Gormley said. "Yet I also recognize that it is not fair to the court or to the taxpayers of this commonwealth to appoint interim justices if there is not sufficient time for them to be up and running very soon. Thus, I recognize that the senators and the governor are between a rock and a hard place."

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