HARRISBURG — In early May, a Pennsylvania Supreme Court justice made an unexpected announcement: He was leaving the Democratic Party.
In a statement sent by a member of his staff from an official court email, David Wecht said he had changed his party registration to unaffiliated due to some elected officials’ “acquiescence to Jew-hatred.”
Wecht’s departure from the party will have little effect on his electoral future, even though the state picks judges in partisan contests. He won another 10-year term last year in a retention election and will be near mandatory retirement age when the decade is up.
Two experts told Spotlight PA that Wecht didn't violate any rules of judicial conduct by issuing the statement. However, they said Wecht’s criticisms of the Democratic Party raised concerns regarding the appearance of bias in the courts.
Bruce Ledewitz, a law professor at Duquesne University, where Wecht also teaches, said the statement would give Wecht the “appearance of bias,” because the state Supreme Court hears many cases filed by both political parties.
“We don't want our judges to be involved in partisan and political disputes,” Ledewitz said.
In an interview with Spotlight PA, Wecht said he’s confident that Pennsylvanians and the lawyers that practice in front of him “know my independence.”
“And if anybody has any problem, they can always make a motion for recusal,” he said.
Wecht was elected to Pennsylvania Superior Court in 2011, then ran for and won a seat on the state Supreme Court in 2015. As he noted in his statement, Wecht was vice-chair of the state Democratic Party from 1998 to 2001 (at the time he was the register of wills and clerk of the orphans court of Allegheny County).
“In the quarter century that has passed since then, the Democratic Party has changed,” he wrote in his statement. “Nazi tattoos, jihadist chants, intimidation and attacks at synagogues, and other hateful anti-Jewish invective and actions are minimized, ignored, and even coddled. Acquiescence to Jew-hatred is now disturbingly common among activists, leaders and even many elected officials in the Democratic Party.”
Under the state’s code of judicial conduct, judges’ political speech is treated differently when they are candidates for office. During campaigns, they are permitted to speak about their candidacy, accept endorsements, and identify as a member of a political party.
The code does not specify what is permissible outside of campaign season, though it does prohibit participation in extrajudicial activities that interfere with performance or “would reasonably appear to undermine the judge’s independence, integrity, or impartiality.”
However, in a ruling earlier this year, Wecht and the rest of the Pennsylvania Supreme Court adopted a “balancing test” to determine whether a judge’s speech could be limited after a Philadelphia judge was disciplined for posting political content on his Facebook page.
The judge and former state lawmaker, Mark Cohen, was reported for repeatedly posting political content on his personal Facebook page, where he boasted “he had consistently received an ‘F’ rating from the National Rifle Association,” called Joe Biden an “excellent president,” and expressed support for raising the minimum wage.
The state Supreme Court ruled that sitting judges are limited in what they can say or post online about politics, affirming the Court of Judicial Discipline’s decision to suspend Cohen. In the majority opinion, Justice Kevin Dougherty cited a federal court case that used a two-factor test to determine when a judge’s speech may be limited: whether the speech addresses a matter of public concern, and whether it serves the state's interest or the judge's.
In a concurring opinion, Wecht wrote that judges must avoid “partisan punditry and running online commentary on politics.”
“People are free to do this sort of thing, but judges are people with an asterisk,” Wecht wrote.
He also noted that Pennsylvania judges may “enjoy a fuller quantum of their First Amendment rights” than others due to the state’s partisan judicial elections.
(Cohen has appealed the ruling to the U.S. Supreme Court.)
Sam Stretton, a West Chester-based attorney who has practiced for over 50 years and represented Cohen in the case, said that Wecht’s statement falls under the same category of political speech as Cohen’s.
“Justice Wecht clearly violated their holding there because he was commenting on the Democratic Party, the Republican Party, and their failure to deal with antisemitism,” Stretton told Spotlight PA.
Stretton argued Wecht would need to recuse himself in cases involving the parties. “He should have had a little more sense, at least if he’s keeping public office.”
Charles Gardner Geyh, a professor of court ethics at Indiana University Bloomington, argued Wecht’s announcement didn’t violate the judicial code of conduct. Because Pennsylvania has partisan judicial elections, he said, Wecht's announcement of his departure from the party he initially ran with is not "irrelevant information."
“He’s announcing this choice because, in Pennsylvania, partisan affiliation matters,” Geyh said.
But he added that Wecht's announcement gave him “a little heartburn," because Wecht took a position on a political issue by criticizing the Democratic Party. Still, Geyh is ultimately "unconcerned" because Wecht was trying to explain why he was leaving.
Ledewitz said that, while he was unsure if Wecht violated any judicial ethics, he felt it was “inappropriate” to issue a public statement.
“If he wanted to change political parties, he could have done so quietly,” Ledewitz said. “But he wanted to make a public statement so everyone would know about it.”
The statement was not the first time Wecht has spoken publicly about antisemitism or criticized the Democratic Party for its response to the issue. As he noted in his statement, Wecht was married in the Tree of Life synagogue, where 11 worshippers were murdered in an antisemitic attack.
“It’s utterly disgraceful that the Democratic Party is so timid about this,” Wecht told Tablet in 2019, six months after the mass shooting. “The whole idea that the fight against anti-Semitism could ever depend on one’s party should horrify any American. This should not ever be a partisan issue. It cannot be.”
Wecht told Spotlight PA that his recent statement was not political and that the voters who elected him “deserve to know” his party registration.
“When I was elected, I was registered as a Democrat. I am not registered as a Democrat. We live in an elected judicial system, and the voters are entitled to know that,” Wecht said.
The state’s code of judicial conduct also dictates that judges should only use court staff or resources for activities that concern the law, the legal system, or the administration of justice. While Wecht’s announcement was labeled a personal statement, it came from a state email account.
Still, political scientists and lawyers who spoke with Spotlight PA said they did not consider the statement a violation of the code because of the minor costs of sending an email. They added that switching party registration could be considered an announcement that related to “the administration of justice.”
In a statement to Spotlight PA, a spokesperson for Wecht said the announcement did not violate state ethics law because Wecht is a “Pennsylvania Supreme Court Justice informing Pennsylvanians on his own personal behalf about a matter of public importance in the public interest.”