According to the Brennan Center for Justice at New York University School of Law, "Thirty-nine states elect at least some of their judges, and the vast majority of cases in the United States are heard by elective courts." But the experience and results of this year's judicial races in Ohio's general election demand that we ask: Is it time for Ohio to join the eleven states that don't elect judges?
The first question: Why is the selection method even an issue? Let us count the ways in which our current manner - partisan primaries followed by nominally non-partisan general elections - can be attacked:
1. It's counterintuitive
I moved here from Connecticut in the late 1980s. I knew nothing but the appointment process for judges and saw my dream of becoming a juvenile court judge (yes, some people actually want to be a juvenile court judge for life) evaporate when I was a first semester "One L." I still remember the disbelief I carried around for more than a few days as I remained astonished that people voted for judges. How could people whom we're expecting to behave as impartial, neutral arbiters of civil and criminal law, be required to appeal to us, first, for our vote in order to get to the bench, thereby making them merely the winners in what seemed to amount to a "Most Popular" contest? The entire process seemed absolutely upside-down to me.
2. The name game
One major criticism of appointment processes has been that they are nothing more than the good old boy network to the max and that names matter in the sense of who you know (and whether they know you). This is why some appointment systems involve steps that increase the likelihood that only meritorious candidates get through to the final list.
But here in Ohio, your odds of finding a name game story related to the election of judges during a run-up to any November are greater than winning at a $25 slot machine in our new casinos. One perfect example of how this factor isn't even a partisan problem is this editorial from the Plain Dealer, "'Name game' rules again in Ohio Supreme Court races." The PD published the column less than 24 hours after the elections ended and cited multiple reasons why it believes two judicial candidates of a lesser quality (in their opinion) beat out the newspaper-endorsed choices (Yvette McGee Brown and Robert Cupp). In particular, they highlight the last names of the winners: Kennedy and O'Neill. The Canton Repository had a good piece on this perspective too.
As hard as it is for me to believe that anyone's last name could be their destiny and doom, there's no question that it can compound the potential for unlikely and sometimes undesirable results (although we could also argue, if the voters voted for the candidate, who is anyone to say it's undesirable?). True story: when I was talking with political strategists I know for advice on my run for city council in 2009, more than one said, "Zimon - that's a good name." Ugh.
3. Down ballot drop off
I don't know about your ballot, but mine was six sides long and it's in two languages, completely. It is not easy to read, in my opinion, casually. You have to really be sure you are following along or you can make mistakes. So there's an argument that I suspect is at least somewhat true, even though I've never done it, that says that people vote for president, and maybe their U.S. senators, but after that? They either only look for what they remember to look for or, they just turn the thing in. No voting on ballot issues, no voting on judges. And that's that.
In part, this could be driven by a lack of knowledge about the judges. It could also be driven by a belief that it won't matter, or that it doesn't really affect the voter, so why take the extra time. This article about the problem in Missouri does a nice job of summarizing the issue. Of course we have some wonderful efforts like Judge4Yourself to fight back against such a temptation to fill in the first page and be done with it.
This is a variation on the same theme as the drop off. By this I mean, keep track of all the judicial seats up for election, the courts involved (common pleas, domestic relations, juvenile, appellate), which candidates and, for those who care, which party. Becasue let's face it, there are a lot of judicial candidates in Cuyahoga County. Now, in smaller counties, this might not be quite as big an issue but we're not in another county - we're here. I'm a lawyer, I went to law school with people now on the bench or running for a seat and I can't get good intel on all of them. Again, I refer people to the Judge4Yourself initiative which is a blessing for us but imagine - if you've been in a long line waiting to vote for the presidential race or the senate race, how likely might you be to stay there a couple of extra minutes to vote for the judicial races? Of course we hope you'll stay. And in addition to the Judge4Yourself, you can print out a ballot in advance and study it. Or you can vote by absentee ballot, which many people like specifically because it allows you time to think about what you're doing and research candidates.
Nevertheless, ballot fatigue can contribute to why using elections for judges can be problematic.
Have you ever thought about just how rare it is for a voter to ever encounter a judge? We're all hoping to avoid ever being before a judge, right? Who wants to go to court? And even when we do have legal issues, how often do those issues progress to the point when you are before a judge? Not so often. Now, it's not like we get to meet the president or need the services of our U.S. senator on a regular basis either, but somehow, those positions are more prominent, in my mind anyway. I will say, though, on the other hand - if you ever have had to be engaged with a judge, chances are you do get the significant role they can play in our lives. Hmm, now that I think of it, maybe more people should be appearing before judges, if we want the voters to care more about who they elect.
6. The money
This concern is possibly the longest-standing concern regarding the election of judges. Ohio Supreme Court Judge-elect Bill O'Neill has made a name for himself for years now protesting the expense and the fundraising aspects of running for judgeships. Indeed, the headline to Aaron Marshall's article about O'Neill's win exclaims, "Ohio Supreme Court candidate who shunned donations ends up victorious." And that was no gimmick - check out this deep dive into the potential influence and conflicts that money in judicial races can cause, including a spotlight on Ohio, in this 2006 article in the New York Times. It includes coverage of Judge O'Neill and his "no money from nobody" pledge. Especially special? The list at the end of the story that indicates the ratio of special interest political donations to Ohio Supreme Court judges circa 2006 to the percentage of times decisions went in favor of those interests.
So now what?
This article provides details on Ohio's reform efforts over time, as well as information on the subject of how judges get to become judges, more generally speaking. Just as it probably surprises few people to learn that the League of Women Voters of Ohio has been trying to change our system to one based on merit since 1938, it should also come as no surprise that Civic Commons' community has examined this topic multiple times also.
Almost exactly two years ago, Dan posted the entire transcript of the first public forum held by the Task Force on Judicial Excellence, a part of the Cleveland Metropolitan Bar Association. (One great tidbit: he notes that there are 87 judgeships in our County - ack!) You can view the forum here and find other transcripts and summaries for the forum series at the Task Force's official page, here. And last March, before Ohio's primaries, Dan also wrote this timeless blog entry about ways in which we can become informed voters including some of the tools I've mentioned already - viewing a sample ballot before you vote, checking out Judge4yourself.com and reviewing summaries of newspaper endorsements.
Champions of change to Ohio's judicial selection system have even included one of its own, the esteemed, late Chief Justice of the Ohio Supreme Court, Thomas Moyer. His efforts, though geared primarily toward only the state's highest court, garnered support from even the usually least amenable voices. If he had lived to see last week's judicial election for his old stomping ground, might he have expanded his modest suggestion?
I know that sometimes these tasks of overhaul seem so massive and therefore often massively unconquerable. But in all seriousness, look what Bill O'Neill accomplished - especially in the face of years and years of defeat, and perserverance?
So I've got my own suggestion of improbability: Ohio Governor John Kasich is in the midst of a process to replace Ohio Supreme Court justice Evelyn Lundberg Stratton. She is retiring as of the end of this year and will leave the court with two years left on her term. That means that the governor will name her replacement and that in 2014, the replacement justice will have to run for his or her own six year term.
While it might seem like a no-brainer for Governor Kasich to appoint current but just defeated Supreme Court Justice Robert Cupp, the Republican who lost re-election to Bill O'Neill, might it not be even more commendable to replace Stratton with Yvette McGee Brown (who, by the way, not only had far higher Judge4Yourself numbers than her direct opponent - Sharon Kennedy - but also is more highly rated than Justice Cupp, with all due respect to him)?
Copyright © 2012 Jill Miller Zimon; available under the Creative Commons Attribution-NonCommercial-ShareAlike License.
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