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A Change of Heart by the Chief on Judicial Elections? — 1 Comment

  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.