Cincinnati Enquirer -
After a decade of campaigning for Ohio to reform the way it chooses its judges, Ohio Chief Justice Thomas Moyer last month finally got one of the key points of his reform enacted – an appointments panel that will screen and nominate candidates to fill a vacancy on the bench.
The irony is that Moyer, a Republican, had to wait until a Democrat was finally elected governor for this to happen.
One of Gov. Ted Strickland’s first major acts after taking office in January was to create a independent five-member panel to screen applicants for an open judgeship, then send the governor its top three picks – something his predecessor, Bob Taft, could have done at any time, but didn’t.
This replaces the old system in which county bosses in the governor’s political party sent up attorneys’ or judges’ names based mainly on their activity in the party.
“I think it’s a major step forward. I’m more hopeful than I’ve been in a number of years,” Moyer said. “We now have a governor who has indicated that he is keenly interested in the judiciary in Ohio, particularly in improving the selection process.”
With Strickland’s order, Ohio joins Kentucky and 31 other states that assign this crucial task to the public scrutiny of screening or nomination panels.
Kentucky, in fact, has been doing it that way since 1976, when a constitutional amendment approved by voters went into effect, establishing a unified, four-tiered statewide “court of justice” system with vacancies filled from a list submitted by the Judicial Nominating Commission, chaired by the chief justice.
The Kentucky Supreme Court’s newest justice, William McAnulty, was chosen in this manner, then won election to a full term last fall. “I am impressed and grateful that a governor (Ernie Fletcher) who I did not know selected me on my experience and qualifications,” McAnulty says.
Why is the process for filling judge vacancies so crucial? An appointee becomes the incumbent – a huge advantage when he or she eventually has to run for election. As Moyer notes, at least half of Ohio’s 700-plus sitting judges, from the Supreme Court down to municipal courts, were first appointed to their posts.
“There are more than 40,000 lawyers in Ohio, yet the pool from which the governor has traditionally selected is very, very shallow, because it has relied on one’s activity at the local level in political parties,” Moyer said. “That pool should be much, much deeper.”
Still, the appointments panel isn’t as revolutionary as it has been portrayed. The governor chooses the members of the panel, and doesn’t have to accept its recommendations. His appointment of judges is still final, with no confirmation from the legislature or any other body.
In Kentucky, the governor must select one of the three nominees, and if he does not do so within 90 days, the chief justice makes the choice.
The panel does not remove politics or partisanship from the process – nor perhaps should it. “Everything is political in this,” McAnulty says. “It’s just a matter of degree.”
Strickland’s appointments could be heavily weighted toward Democrats – but not necessarily. McAnulty, a Democrat, was selected by Fletcher, a Republican. “Interestingly, Fletcher has appointed four Democrats and one Republican to the Supreme Court and appeals courts, yet he has been criticized for exercising his constitutional authority,” McAnulty says.
That’s why some Democrats were disappointed by Strickland’s move – it may not serve as their party’s “equalizer” for 16 years and two governors’ worth of GOP appointments.
“Democrats have been out of power for some time. One would hardly have been surprised if Strickland had retained the traditional vetting system of county party officials,” says John C. Green, distinguished professor of political science at the University of Akron and a leading expert on Ohio politics.
“It may very well be that it is something Strickland is very sincere about. It also may be that after an unpopular administration, a new governor is determined to set a different tone.”
Ideally, part of that tone will involve ratcheting down the rhetoric surrounding the choice judges.
“There are a number of groups, such as the Ohio Bar Association (OBA), that have been concerned about the quality of judges in Ohio,” Green says. “The fear was that partisan politics had become so rancorous both in appointments and elections that many of the best-qualified judge candidates didn’t want any part of it – and when they did, they often didn’t succeed.”
Further reforms
Moyer calls the Ohio panel a “huge refinement,” but it is just that – a refinement. It makes the process more open and transparent. It ensures that a larger number of qualified candidates is considered. But more meaningful reforms are needed.
Perhaps the biggest reform will be finding a way to insulate judges from political money and the perception, at least, of special-interest influence, especially in the Supreme Court and state appeals courts.
In the past decade, Ohio judicial campaigns at those upper levels have spun out of candidates’ control, hijacked by special interest groups’ advocacy ads. According to the OBA, more money was spent in 2002 on two Supreme Court races than on all the state supreme court races in the rest of the nation combined.
“The real question here is, how do we protect the independence and integrity of the judicial branch?” Moyer said.
One solution is longer terms for judges so they don’t have to run as often. “That’s very important at the appellate and Supreme Court because of the physical and mental resources it takes to run a campaign,” Moyer says.
Kentucky Supreme Court justices, for example, are elected to eight-year terms, as opposed to Ohio’s six years. Moyer would like to see it doubled, to 12 years between elections.
But his ideal solution focuses on what is often called “merit selection:” Stop electing justices and appeals judges. Appoint them after a rigorous screening process, after which they would face a “retention election” after a prescribed term. Lower-court judges would continue to be elected.
“I feel very strongly about this,” Moyer said, “because money talks and it is the antithesis of what the system is about – impartiality.”
McAnulty created a bit of a stir recently for suggesting Kentucky put together a study group to look at other states’ systems and consider merit selection.
“We need to do this business better,” he says. “So-called ‘non-partisan’ elections are not the way to choose appellate judges.
“A retention setup allows the electorate pass judgment on a judge’s qualifications. Of course, it also allows special interests to torpedo a judge. There are pros and cons to every system.”
Possible weaknesses
Strickland’s new panel is not about merit selection, as some believe. And it could have some weaknesses. “Obviously, the proof of any plan like this is in the execution,” Moyer says.
One major factor in the execution is who is on the appointments panel, and the regional sub-panels, and who they represent. So far, Strickland is getting high marks for his panel of three Democrats and two Republicans. “If you look at who he’s appointed, they’re pretty impressive people, even if you don’t agree with all of their politics,” Green says.
As the Columbus Dispatch said in a recent editorial, political parties should continue to have a voice in the process because in a sense, they may be more accountable to the public than the sort of private groups – law firms and trade associations – that are represented on Strickland’s panel. The assumption that partisan selection leads to less qualified judges is questionable. Besides, there are times when a judge’s political party should matter.
“One of the key factors is the person’s ability to hold the office when they have to run for election,” Moyer said. “That can bring in the issue of one’s political party – but it may not be crucially important in some counties.”
So while Strickland’s panel is a good first step, Ohio should do more to give voters greater confidence in the judiciary’s independence and integrity. Part of that should be finding ways to make voters more informed and involved – perhaps instituting a regular “report card” on sitting judges to serve as a voter guide.
A forum Moyer convened in 2003, which Green participated in, came up with several specific reforms. Two years later, Rep. Bill Seitz, R-Green Township, submitted a bill that adopted several of those reforms, but it died in the Judiciary Committee. It would have:
Created a Judicial Appointment Review Commission (which Strickland essentially has done).
Raised the bar for legal experience required to be a judge (with an option for small counties to reduce the requirement)
Mandated a training program for judicial candidates.
Lengthened Ohio’s six-year judicial terms of office to eight years for common pleas judges, 10 years for appeals judges and 12 years for Supreme Court justices.
A new version of the bill expected this year should have a better chance of passage. State lawmakers should consider it seriously and ignore the partisan rhetoric on judicial appointments.
“I’m very pleased that we now have all three branches of government focused on the question of what do we do to improve our judiciary,” Moyer said. “It is good, but it can be much better.”

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