DeWine’s court pick to wield big impact
New justice likely to give GOP more power on rulings
With Republican Sharon Kennedy moving from an associate justice to chief justice of the Ohio Supreme Court on Jan. 1, Gov. Mike DeWine will appoint her replacement in a move that guarantees to shake up the state’s high court.
Four Republicans currently are on the seven-member court. That includes outgoing Chief Justice Maureen O’Connor, who has sided with the three Democratic justices on a number of key decisions — including striking down five state legislative and two congressional redistricting maps in 4-3 votes.
O’Connor couldn’t seek re-election this year because of the state’s age limit on judges, and has been widely criticized by Republicans throughout Ohio for some of her decisions.
Kennedy defeated Justice Jennifer Brunner, a Democrat, for the chief justice position. If Brunner had won, DeWine, a Republican, would have appointed a GOP replacement for her as well.
DeWine has spent the past few months focusing much of his attention on his successful re-election campaign, the legislative lame duck session and preparing the state’s budget, said Dan Tierney, the governor’s spokesman.
But appointing a new justice has “been on his radar,” Tierney said. “I expect more details in the coming weeks. Stuff on this appointment will ramp up over the next month.”
The governor’s legal team will start taking letters of interest from potential replacements shortly, but no deadline date has been set, Tierney said. People already have been asking about the position, he said.
“It’s not surprising that people are interested in a Supreme Court seat,” Tierney said.
Kennedy won’t start serving as chief justice until Jan. 1.
“There is no vacancy until there’s a vacancy,” Tierney said.
But the process will begin, he said.
Tierney added: “There are a lot of important cases coming up, and it’s important to (DeWine) it’s someone who respects the law. The governor wants judges who tend to try not to legislate from the bench, but interpret the law as written. Those are things he’s opined on with the U.S. Supreme Court so certainly that would not be a surprise if those are the things he emphasizes there.”
The person appointed would have to run in the 2024 election for the rest of Kennedy’s term, which goes through Dec. 31, 2026.
The two early favorites to replace Kennedy are Megan E. Shanahan, a Hamilton County Common Pleas Court judge, and Ben Flowers, the state’s solicitor general, according to Republican sources.
Shanahan has been a Hamilton County Common Pleas Court judge since January 2015. Before that, she spent four years as a Hamilton County Municipal Court judge, five years as an assistant prosecutor in that county and started as a Butler County assistant prosecutor, working there for five years.
Flowers has served as the state’s solicitor general since 2019. Previously, he was an appellate litigator for three years at Jones Day, a Columbus law firm, and clerked for Antonin Scalia when Scalia was a justice on the U.S. Supreme Court.
With a new justice and a sweeping Republican victory on Election Day, redistricting — one of the most important issues the state Supreme Court will face — could be resolved, Tierney said.
While Tierney didn’t mention it, not having O’Connor side with the three Democratic justices will make it easier to get state legislative and congressional maps approved by the Supreme Court as the three other Republican justices — including DeWine’s son, Pat — voted every time in favor of upholding the maps. O’Connor and the Democratic justices overrode those objections by seven 4-3 votes, saying the maps were unconstitutional because they unfairly favoring Republicans.
Tierney said: “One of the big stumbling blocks with redistricting was the two parties couldn’t come to an agreement, in large part because of proportionality.”
Those suing the Ohio Redistricting Commission, which has a 5-2 Republican advantage, said one issue was the maps didn’t represent the statewide partisan vote for the past decade: 54 percent Republican to 46 percent Democratic.
With sweeping Republican victories on Election Day, that percentage has increased as 2022 will now replace 2012, an election that saw Democrats Barack Obama and Sherrod Brown win statewide for president and U.S. senator, respectively, in the only partisan statewide races.
Republicans likely have a percentage in the upper 50s now, Tierney said.
“It’s going to be a different spread,” he said. “We’ve got court case law now that gives high priority to the percentages and with the percentages higher for Republicans, that will hopefully bring more compromise.”
Republicans on the commission who backed the unconstitutional maps said with Democrats compacted in specific smaller geographic areas of the state, it was difficult to come up with a 54-46 spread that didn’t make a number of Democratic-leaning districts much more competitive than the Republican ones.
Twenty-six of the state legislative districts were drawn to favor Democrats by no more than 3 percent and all of the Republican districts favored that party by at least 5 percent, with only four by less than 10 percent.
Republicans ended up winning many of those districts that slightly favored Democrats and grew their majorities in the House and Senate.
Because of the unconstitutional court rulings, the maps for state legislative and congressional seats will have to be redrawn for the 2024 election.