A Change of Heart by the Chief on Judicial Elections?

An interview with Ohio’s Chief Justice Maureen O’Connor and AP reporter Andrew Welch-Huggins, which ran in a number of Ohio newspapers last week, carried the headline “Ohio Chief Justice: Time to Rethink Judicial Elections.” The story quotes O’Connor as saying that because nearly 70% of the judicial races (69% in this election cycle) are uncontested, people are just casting what she called “complimentary” votes.  The article states that O’Connor’s goal is to take politics out of judicial campaigns, and indicates that the Chief now favors a merit selection/retention system, in which the governor would initially appoint judges based on recommendations from a screening committee.  Two years later, in a retention election in which a judge runs on his or her record rather than against an opponent, voters would decide whether or not to retain that judge.

This is quite the change of heart for the Chief.  This plan, known as merit selection, is already used in many states, and was the passion of the late Chief Justice Tom Moyer, who tirelessly, but unsuccessfully,  proposed merit selection, at least for appellate judges and supreme court justices in Ohio. (It was unclear from the article whether O’Connor was making the appellate/trial distinction, or was proposing merit selection for all judges).  Shortly before he had to retire for reasons of age, Moyer had been holding summit meetings on this topic again. Upon his retirement, which he never reached because of his sudden and untimely death, he had planned to work with retired U.S. Supreme Court Justice Sandra Day O’Connor (no kin to Ohio’s Chief, to my knowledge) on her O’Connor Judicial Selection Initiative, which is assisting state efforts to choose judges by merit selection rather than by election.

In May of 2013, in her address at the annual meeting of the Ohio State Bar Association, Chief Justice O’Connor rolled out an eight point plan, posed as a series of questions, to strengthen judicial elections in Ohio. But in several contemporaneous interviews, she made it clear that she was not proposing a change in the way Ohio chooses its judges because voters had made it clear that they wanted to continue to elect their judges.

A year later, on May 1, 2014, during her state of the judiciary address at the OSBA annual meeting in Columbus, the Chief recommended action on three of the eight issues she had proposed the year before—holding judicial elections in odd-numbered years, and moving them to the top of the ballot; educating voters more thoroughly about judicial elections through voter guides, and increasing the basic qualifications to serve as a judge.  But nowhere was there any suggestion about eliminating elections.

So now that the 2014 election cycle is behind us, why the apparent change of heart? There are plenty of good reasons. Maybe it’s the obscene amount of money.   According to watchdog organization Justice at Stake, nearly $14 million was spent on TV ads in primary and general elections for state supreme court races. Ohio logged in fifth with nearly 1.4 million dollars spent on the two seats up for election this year.  Or maybe it’s the fact that a lot of the money comes from outside sources, with names like American Freedom Builders, one of this years’ big bucks donors.  Or maybe it’s because negative ads besmirch the judiciary. I don’t think any judges or judicial candidates are really comfortable with those.

Or maybe it’s the complete disruption of the courts’—and the people’s–business that occurs with these elections.  For example, this year, while not making any overt announcement about it, the supreme court has not heard any oral arguments since September 24, 2014, and is not resuming them until January 13, 2015. Running a statewide campaign, especially for supreme court justice, without the kind of campaign organizations that support candidates for the political branches, is grueling work, which cannot help but interfere with one’s day job.

I applaud the Chief’s change of heart. When Ted Strickland was Governor, he did use the kind of judicial recommendation panels the Chief is now advocating to fill judicial vacancies.  I was privileged to chair one of them for a couple of years, and applaud the process. I was impressed time and again at the quality of lawyers who applied for and were appointed to judicial vacancies, and at how much this increased diversity in our courts.

Tom Moyer never did succeed with the reforms he so deeply cared about.  I wish Chief Justice O’Connor the very best with her change of direction in reforming the judicial selection process.

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One Response to A Change of Heart by the Chief on Judicial Elections?

  1. Marianna: I share your distaste for the “Buy-A-Judge” process we currently have. We can all pretend it doesn’t exist, but we have been witness to one Supreme Court candidate openly tell a gathering of physicians that they were “physician friendly”, and another recently make it clear they were “legislature friendly”, Federalist Society code and criteria for deference/submission and hostility to “judicial activism”. (Who knows what goes on behind closed doors when some waiter is not catching a candidate on an iPhone video complaining about the 99%? Well, actually, we all know the answer to that.)

    One side will always have the capacity to outspend the other to get their candidates and their version of the American way. The NYT and others have documented the obscene correlation between “donations” (that really is too benign a term) and votes on cases; recipients do not even dispute the correlation, but claim it is mere “coincidence”. The OSBA’s apparent solution is to get candidates to sign pledges promising not to point out those dark recesses, so nobody thinks it is really happening. (See, the rebuke of Judge John O’Donnell this past election cycle).

    However, for politics to be removed, it has always been about who has control – the Governor, or someone else? – over appointments to the “Selection Committee”, and the overall political composition of that committee. Like gerrymandering, even the answer to that will be the subject of intense political fighting, lobbying and “compromise” (most likely to the integrity of the process).

    If a “merit selection” process merely mirrors how Kasich has identified the “most qualified” candidates to appoint to vacancies, all it does is eliminate the nuisance of raising enormous amounts of campaign funds for the election, to achieve the same result – a politically preordained result. To put it rhetorically, has Kasich, Voinovich, or Taft ever appointed a Democratic judge? The answer is no. Why then should we expect a “selection committee” controlled by any Republican governor to ever be asked to appoint a Democrat? Maybe the answer truly is that only Republicans are qualified to be judges; but the question remains, qualified to do what?

    For a true merit selection process to work, there has to be rigorous qualifications to be a member of the selection committee. The committee must be truly bipartisan, and the governor cannot control who is on the committee, or determine which judicial candidates are recommended to the committee for consideration. That is a “merit selection” plan I can get behind, and the only kind of merit selection plan I can get behind. Anything else is merely window dressing to allow those in control to proclaim that judges are not political animals subject to the vices of every other political animal, when in fact they are.

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