Be honest with voters about political parties of judges
A bill recently introduced in the Ohio Legislature would add political party affiliation to the names of judicial candidates running for the Supreme Court and courts of appeals. In other words, “(R)” or “(D)” would be listed after the names of judges who had been selected in a Republican or Democratic primary in the same way that such labels are attached to the names of candidates for other offices. In my view, the change makes sense. The more information voters have, the better our elections.
The practice of electing judges in Ohio dates back to the adoption of our modern-day constitution in 1851. Judicial selection, in fact, was one of the key reasons Ohio jettisoned its previous constitution. Under the old system, judges were selected by the state legislature and were widely thought to be beholden to the legislative branch. Some proposed that Ohio move to a system like the federal model with judges appointed by the executive branch, but others worried this would simply transplant the problem, creating judges overly deferential to the executive. The view that ultimately carried the day was that for judges to be truly independent, they must be answerable only to the people. Hence, the adoption of our current system of selecting judges for six-year terms through popular election.
There is nothing unusual about electing judges to state courts; indeed about 3/4 of the states employ some form of judicial elections. What is different about Ohio is that we are the only state in the country that nominates judges in a partisan primary election but then holds a non-partisan general election where judicial candidates are listed on the ballot without party labels.
Our constitution mandates the selection of judges in partisan primary elections. This means that the vast majority of our judicial candidates on the fall ballot will have been selected in either a Democratic or Republican primary. As long as that is the case, there seems little value in hiding that fact from the voters. Our judicial selection system is premised on the idea that voters should have the ultimate say; we do not further that aim by deliberately hiding information from them at the ballot box.
No doubt, a party label does not dictate how a judge will decide a particular case. As judges, our role is to apply the law as it is written, regardless of our personal preferences about what the law should be or our sympathies toward any particular litigant. But there is research that shows party affiliation provides some indication about a judge’s likely judicial philosophy. And while it is far from a perfect indicator, it is information that at least some voters might find useful. By being transparent about party affiliation, we allow the voter to attach whatever significance he or she chooses to the information or to disregard it completely.
Those who oppose adding party designation to the general election ballot worry that it will politicize the judicial system. But telling the voters that a candidate was nominated by a political party doesn’t add an extra element of politics to our system. It simply makes sure they are aware of what already is the reality. Rather than hiding party affiliation from the voters, we are far better served by trusting voters with the information and allowing them to make their own decisions.
R. PATRICK DEWINE
Justice R. Patrick DeWine has served as a member of the Ohio Supreme Court since 2017.