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Wolf nominee to top court causes stir with controversial email

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Centre Daily Times
Judge Thomas K. Kistler speaks during a Centre County Judges forum at Mountain View Country Club, in Boalsburg, Pa., Sept. 24, 2013.
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© Richard Kelly Photography
Ken Gormley, president-elect of Duquesne University and current dean of its law school.

HARRISBURG — One of Gov. Tom Wolf’s nominations for two state Supreme Court vacancies appeared to be in trouble Friday, if not at risk of being withdrawn.

A Wolf aide said the governor would review reports that Centre County Common Pleas Judge Thomas K. Kistler may have sent a racially insensitive email to nearly two dozen individuals in 2013.

Separately, Senate Republicans received a document anonymously involving the second nominee, Duquesne University School of Law professor Ken Gormley, that included an administrative officer’s report from 2007 suggesting there was “sufficient evidence” to support a professor’s discrimination claim related to a tenure quest.

The emailed Christmas greeting card depicts a black man in an orange jumpsuit sitting behind a glass prison partition, talking on the phone with a black woman outside the glass. “Merry Christmas from the Johnsons,” the card reads.

Kistler, the county’s president judge, could not be reached.

The email, which the Tribune-Review obtained, appears to have been sent by Kistler to 22 people, some of them lawyers. It’s unclear whether it came from a private or county email account.

A message at the top reads: “Touching and heart-warming. Merry Christmas to ALL! — JK”

Wolf nominated Kistler, 57, a Republican, and Gormley, 59, a Democrat, to fill two open seats on the court, saying both men would “execute their duties with the highest standard of ethics and judicial temperament.”

Wolf “doesn’t condone emails like that,” his spokesman Jeffrey Sheridan said, though he did not say the governor would urge Kistler to withdraw as a nominee.

“In light of the information we received, we need to review that information,” Sheridan said. He declined to elaborate.

The information is believed to be additional background on both nominees.

Federal court records show Gormley was named in at least two lawsuits alleging discrimination and harassment, arising from tenure quests.

One lawsuit, filed in 2010 by former law professor Alice Stewart, was settled out of court under seal in 2011. The other, filed Oct. 31, 2014, by Susan Hascall, alleges religious discrimination and is pending. Hascall is a law professor whose teachings include Islamic law.

It’s unclear whether those documents were among the information Wolf and his aides would review.

Gormley, reached by phone, declined to comment.

“We have our (Senate) hearings next week,” he said.

“Duquesne University is deeply troubled by the fact that a confidential document from a university file has been sent by an anonymous individual to the Pennsylvania Senate Judiciary Committee, in an improper attempt to influence the confirmation process with respect to Dean Ken Gormley, who is extraordinarily well qualified to serve on the Pennsylvania Supreme Court,” said Bridget Fare-Obersteiner, associate vice president of public affairs.

Marie Jones, who chairs Duquesne’s board of trustees, said counsel reviewed the administrative officer’s report in the Stewart case and determined it was not substantiated.

“The position of the university was it was an unfounded allegation,” she said. The settlement was not “an adverse ruling for the university at all.”

Tim Kolman, Hascall’s lawyer, could not be reached. He also represented Stewart.

Hascall’s lawsuit is based on a tenure issue, and the university denies any religious discrimination, Jones said.

“This is a man of integrity,” she said of Gormley.

The nominations require Senate approval by at least a two-thirds vote. It’s unclear when the Senate might vote. Four of the 50 senators are black.

“More than just offensive, it shows he’s out of touch,” Rep. Dwight Evans, a black Democratic lawmaker from Philadelphia and key Wolf supporter, said of the email. “It’s not representative of someone we want on the bench. I don’t know him, never met him. But I do not think it is funny.”

Kistler told The Philadelphia Inquirer that he could not recall sending the Dec. 16, 2013, email, but he did not deny forwarding it.

An Internet search shows the image on the card has circulated since at least 2011.

Kistler was a trial lawyer for more than a decade before becoming a Common Pleas judge in 1997. When nominated, he told the Tribune-Review that it’s “a wonderful honor” and that he was “really looking forward to serving all the residents of Pennsylvania.”

Centre County’s black population was 3.4 percent in 2013, compared with 11.5 percent statewide, census data show. A racial breakdown of defendants tried in the county court system was not available Friday. The identification of a defendant’s race is optional under state record-keeping, and a court spokeswoman said records could take several days to retrieve.

By Senate tradition, Supreme Court nominees appointed to fill vacancies typically agree not to seek election. If confirmed, Gormley and Kistler would serve until January.

The first day of the 2015 Supreme Court session is March 9 in Philadelphia.

The court, with seven justices, meets in Philadelphia, Pittsburgh and Harrisburg. Justices are elected to 10-year terms and are paid $200,205; the chief justice, $206,032.

Wolf nominated Kistler and Gormley to fill the seats of former Justices Ronald D. Castille, who reached the mandatory retirement age of 70, and Seamus P. McCaffery, who faced an ethics investigation over racy emails.

“We don’t have any comment at this time,” said Jennifer Kocher, a spokeswoman for Senate Majority Leader Jake Corman, R-Centre County, a supporter of Kistler’s nomination.

“I can’t speak to the particulars, but we all know there is a lot that needs done to make diversity a priority in this commonwealth,” said Rep. Jake Wheatley, a black Democrat from Pittsburgh’s Hill District. “It’s unfortunate we have to respond to this type of thing with all the broader issues we have to address.”

Scholars on racial issues split over whether the email discovery should end Kistler’s nomination.

“You wouldn’t want someone judging you who held those kinds of views or found that to be humorous,” said Larry Davis, the School of Social Work dean at the University of Pittsburgh.

If Kistler sent the email, Davis said, Wolf should renounce the nomination and refuse to tolerate such correspondence.

“I think the response to it is more important than anything else. I think his sending it says something about him, but I think our response to it says something about our society,” Davis said.

At Penn State, faculty member Paul C. Taylor said the email should be one piece of a larger public conversation about Kistler’s track record and qualifications for the high court. He said it would be helpful for Kistler to address the matter publicly.

“We all have weak moments. We are all cracked vessels. There is a story to be told about the totality of this man’s life and career that should inform our judgments on his suitability” for public office, said Taylor, head of the Department of African American Studies.

Kistler received a bachelor’s degree from Penn State in 1979 and a law degree in 1982 from Dickinson School of Law.

In 2008, he led a community process to establish the Centre County Child Access Center, which opened in October 2008 as a place for separated or divorced parents to exchange children safely when there is a threat of domestic violence.

Brad Bumsted and Adam Smeltz are Trib Total Media staff writers.

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