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Life would probably be easier for Pennsylvania Republicans this fall if Donald Trump, and contentious issues such as abortion, just disappeared until after November. It’s not going to happen, but based on developments in the upcoming state Supreme Court race, it probably won’t be for lack of trying.
Case in point: A few days before this past May’s primary, I found myself at the Green Tree headquarters of the Republican Committee of Allegheny County, covering a visit by a handful of the state Republican Party’s endorsed candidates for statewide judicial races.
The event’s headliner was Montgomery County President Judge Carolyn Carluccio, who is running for the Supreme Court seat left empty by the death of Max Baer. She spoke to a small but enthusiastic crowd about the importance of the judiciary — and of being sure Republicans choose a “November candidate” as their nominee.
A November candidate, Carluccio told me, was someone electable, a candidate who “can attract some bipartisan support, can attract some independents, can get the excitement and the energy that you need.”
Her own enthusiasm waned somewhat a moment later, when I asked whether she thought Pennsylvania’s Constitution contained privacy protections beyond those in federal law. That’s an admittedly loaded question: Supporters of abortion rights argue the state does have more protection — and thus that Pennsylvanians have reproductive freedoms that federal officeholders can’t take away. Judicial candidates are often (though not always!) wary of staking out positions on issues that might come before them on the bench. And political candidates of all stripes have been known to shy away from issues that have cost their party votes.
"The Pennsylvania Constitution is different in certain ways,” Carluccio allowed, “but that's not really what I'm here to talk about."
A few minutes later, she and the other judicial hopefuls gathered together for a photo at the front of the room … but not before a member of the GOP faithful discreetly took down a photograph of Donald Trump that had been hanging on the wall behind them.
I’ve been thinking about that moment since the national media turned its attention to the general-election contest between Carluccio and the Democratic nominee, Superior Court Judge Dan McCaffery. The online journal Politico recently described the match-up as the “next big abortion battleground.”
McCaffery told me this past spring that while ethics rules limit what judges can say about matters that might come before them, “I believe strongly that once individual rights are established, we shouldn't be taking steps back to restrict those rights. … And I tell people all the time, unlike the federal Constitution, the Pennsylvania Constitution has a specific and explicit right to privacy.”
By contrast, Politico resurfaced a report in The Keystone, a state progressive media outlet, that Carluccio’s campaign website had pulled down a resume that described her as a “Defender of All Life Under the Law.”
Asked about abortion, Carluccio told Politico: “I can’t take stances on anything that might come before me,” but she added, “I believe in upholding the law … and women's’ reproductive rights are protected under Pennsylvania law.”
That’s pretty much what she told me before the primary, too: "I want to take politics out of the equation. … I am a judge who has always followed the law.”
On the other hand, it’s also pretty much what members of the conservative U.S. Supreme Court majority said during confirmation hearings … before they ruled last year to overturn Roe v. Wade and its nationwide guarantee of abortion rights.
Amy Coney Barrett, for one, assured senators that, “For any issue that comes up, abortion or anything else … I’ll follow the law.” Yet once on the court, she joined the anti-abortion-rights majority in Dobbs v. Jackson Women’s Health Organization. Saying “I’ll follow the law” isn’t a binding promise once you are in a position to define, or redefine, what the law means.
To be sure, Carluccio doesn’t appear to be the kind of conservative firebrand she faced in the Republican primary, Commonwealth Court Judge Patricia McCullough. McCullough is, after all, one of the very few judges in the nation to have ruled in favor of Trump’s efforts to overturn the 2020 election. Carluccio, meanwhile, received the state Bar Association’s highest rating (as did Democrat McCaffery), and her resume also includes several years of service as a public defender. She also hails from southeast Pennsylvania, a region that once specialized in producing moderate Republican officeholders.
Too, Carluccio is not exactly the first candidate to tailor her message on a controversial issue after winning a primary. And even her victory would leave a 4-to-3 Democratic majority that supports abortion rights in control of the court, at a time when Democrats hold the governor’s mansion and one branch of the legislature.
But again, Dobbs was decided by judges who arguably benefited from demonstrating a studied ambiguity during their confirmation process, and from a general complacency that a long-established and popular status quo simply couldn’t change overnight. Until it did.
Those opposed to abortion rights, at least, seem excited by the prospects this fall. The Pennsylvania Pro-Life Federation political committee recommended both Carluccio and McCullough this spring, and it still supports Carluccio for the fall.
Maria Gallagher, who heads that political committee, told me that based on Carluccio’s public statements and an interview with a campaign representative, the group is confident she will be a “strict constructionist” rather than an “activist.”
Nor did Gallagher seem concerned that Carluccio might be playing down the abortion issue for the fall.
“All sorts of things happen in a campaign,” she said.
Gallgaher said that since the Supreme Court’s decision, “our role is preparing Pennsylvania for the post-Dobbs period.” This year’s races were one part of that, and the outcome “is all a question of turnout,” she said.
In a couple months, we’ll find out whether those who support abortion rights reach the same conclusion.
