Twenty-five years ago, the voters of Ohio resoundingly defeated a ballot measure that would have based the selection of state supreme court justices on merit, rather than politics. But the special interest groups that have long sought to influence the outcome of judicial elections have not been willing to give up their perceived power — measured by the almighty dollar — and have fought any attempt to change the system.
Thus, Ohio continues to feature what amounts to a hypocritical method of electing judges at all levels.
While the general election is nonpartisan — candidates make much of the fact that their party affiliation does not appear on the ballot — they do run in primaries that determine the Republican and Democratic nominees. But the hypocrisy isn’t the only failing of the system.
With voters generally unfamiliar with the various courts — let alone the candidates — there is no guarantee that the best, brightest and most qualified will be elected.
The Nov. 6 general election is a case in point.
There were three Ohio Supreme Court justices on the ballot, with two, Terrence O’Donnell and Robert Cupp, seeking re-election to second six-year terms, and one, Justice Yvette McGee Brown, who had been appointed to the court in April 2010 by then Gov. Ted Strickland, seeking to serve out the term of office.
The Ohio State Bar Association evaluated the three incumbents with the following results: McGee Brown and Cupp “highly recommended”; O’Donnell, “recommended.”
McGee Brown, a Democrat, was challenged by Republican Sharon Kennedy, a domestic relations court judge in Butler County. Kennedy was “not recommended” by the state bar association, meaning that lawyers in the state who evaluated the candidates concluded she was not Supreme Court material. It was the first time in 15 years that the bar association issued such a finding.
Republican Cupp was challenged by Democrat William O’Neill, a former appeals court judge who received a “recommended” rating from the bar. Republican O’Donnell’s challenger, Democrat Michael Skindell, a state senator and a lawyer in private practice, also received a “recommended” rating.
Here’s what happened on Nov. 6: O’Donnell survived; Kennedy defeated McGee Brown, and O’Neill defeated Cupp. The best explanation is that voters chose on the basis of name familiarity. That’s troubling.
Look, too, at the race for the 7th District Court of Appeals, with incumbent Mary DeGenaro, a Republican, who was found to be “highly qualified” by the Mahoning County Bar Association, being challenged by Democrat Mark Hanni, who received a “not qualified” rating from the bar.
DeGenaro won re-election, but it shouldn’t have been close. The incumbent received 110,204 votes (52.37 percent) in the eight-county district; Hanni got 100,225 (47.63 percent).
Given the outcome of the Supreme Court races, would the people of Ohio reconsider the issue of merit selection of judges?
Were Ohio’s former chief justice, Thomas Moyer, alive today, we believe he would be leading the charge to change the way judicial positions are filled.
In 2009, as he was getting ready to retire, Moyer, along with the state bar association and the League of Women Voters of Ohio Education Fund, began exploring two options: having judges selected by the governor on basis of merit and then facing a retention election; or, public financing of judicial races.
Moyer died before he could pursue the changes he believed were inevitable. He had gained bipartisan respect in Columbus and would have given a reform movement special credibility. But in his absence it is incumbent on justices past and present to signal their support for a new system — something likely to produce a better outcome than that of Nov. 6.