There’s a better way to get better judges

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In an op-ed piece published in May, Ohio Supreme Court Chief Justice Maureen O’Connor concluded that, based on a poll, “there is widespread agreement that we should elect our judges.” Believing it futile to advocate merit appointment but seeing some change as necessary, she has proposed eight changes to the judicial election system. In a piece published on July 13, 2013, attorney Bret A. Adams bitterly criticized judicial elections for producing incompetent judges.

So, what’s really going on?  First, let’s look at the December 2012 Quinnipiac University poll to which O’Connor refers. Here’s the question that was asked: “Which do you prefer: A) Keeping the current system of electing Ohio Supreme Court judges; or, B) Changing to a system in which new judges would be appointed by the governor and confirmed by the legislature?”

Eighty-one percent of respondents preferred the current system.  This shouldn’t come as a surprise. Four months before, according to Public Policy Polling, Gov. John Kasich’s approval rating was only 41 percent. Who wants a governor (much less an unpopular one at the time) to control the judiciary?

The Quinnipiac poll speaks only to the public’s dim view of giving politicians more authority but says nothing about what kind of judges voters want. We should be investigating how the public would respond to a system that would provide a higher likelihood of more qualified and competent judges.

The Ohio State Bar Association supports merit appointment with retention elections. The system is based on stated minimum qualifications, where candidates are screened by non-partisan committees and are judged on experience, skill and ability.  Appointed judges would be subject to retention elections at regular intervals.

Adams is correct. The current system is not designed to produce good judges. In selecting judicial candidates, party bosses do the public a disservice. Their goal—who can get elected based on simple name recognition—is at odds with what the public needs in its judges—superior intellect, sound judgment, calm temperament, solid work ethic.

It’s easy to infer from Adams’ letter that the election system has produced mostly incompetent judges. True, we have some judges who perform poorly, but somehow, despite the parties’ skewed priorities, we have many good judges. Still, we should do much better.

If Ohio’s lawyers favor merit appointment, why doesn’t the idea take hold? Simple. Its proponents are intimidated by the recent Quinnipiac poll and a referendum from nearly 30 years ago concerning merit appointment that failed.  Apparently, no one feels the time is right to push the idea.

In their 2003 study, Judicial Selection in Ohio, authors Michael E. Solimine, Carolyn Chavez, Thomas Pulley, and Lee Sprouse tell the story of what happened with the 1987 referendum. The OSBA, Ohio League of Women Voters, and insurance and business communities joined forces to promote a ballot proposal for a merit selection system, known as Issue 3.

Issue 3 called for establishing nominating commissions for the supreme court and each of the courts of appeals. Each commission, composed equally of lawyers and non-lawyers, would screen candidates and propose three names to the governor, who would appoint one person. Once appointed, a judge would be required to face regular retention elections and receive at least a 55 percent approval vote to stay in office.

The unions and political parties opposed Issue 3, asserting it was elitist and anti-democratic and deprived Ohioans of the right to vote. Voters rejected Issue 3 approximately two to one. Solimine and his colleagues attribute its defeat to the effectiveness of the opponents’ “right to vote” campaign. Apparently, the opponents were able to distract voters from the fact that retention elections were part of Issue 3.   

Naysayers will argue that merit appointment will be subject to political forces, just as elections are, but in a less obvious way. Regardless of their criticism, we know this with certainty: the current system does nothing to ensure that the best candidates become judges.

O’Connor’s proposals make sense if you agree that judicial elections are here to stay. But here’s the problem; at best, her proposals tepidly improve a bad system.

We can do better, but changing the system requires that we educate the public. It will be hard work, but nothing worthwhile comes easily. The bar association and the Supreme Court should embrace the idea of advancing merit appointment with the legislature and reassuring voters that, by virtue of retention elections, they will retain the right to vote.

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