Blog

Last week’s elections give me cause to revisit the matter of whether judges should be elected or appointed by a body that vets them for their qualifications. First, let’s review the comments from the judicial candidates who ran for appellate and trial court positions in Franklin County, Ohio. They were all asked, “Do you support merit selection of state supreme court and state appellate judges and explain why.” With one exception, all were in favor of elections.

I wonder if the candidates felt compelled to express support for elections only because their own success depended on being elected. How do you say you don’t favor elections when you’re running in one?

My skepticism aside, I think their comments are based on a false premise. To show you what I mean, let’s look at what two candidates in particular said: “I place great trust in the ability of an informed electorate to decide who is elected to the bench,” and “The people of Ohio are more than capable of choosing our judges.” Here’s the false premise: voters have ample information to make an informed decision. In fact, they don’t.

I’ve talked to a number of non-lawyers about judicial elections, and I hear cries of frustration. Voters don’t know who they should vote for, and the reason is they don’t have meaningful information about the candidates. Voters don’t like being asked to make a choice with so little information.

Judicial elections are far different from other elections. Candidates running for the statehouse can talk about issues ranging from taxes to abortion. For the most part, judicial candidates are prohibited from stating their views, which makes sense. We don’t want judicial candidates staking out positions on issues that may come before them as judges.

But there’s also something else that’s significantly different about judicial candidates. To excel as judges, candidates must have certain attributes, such as being even tempered, experienced, well versed in the law, reasonable and fair minded. Voters don’t know who is best qualified, and so they guess when voting.

To illustrate my point, let’s look at one race in particular from last week and compare the candidates, who I’ll refer to as Candidates A and B. Before going further, I have to tell you, Candidate A is a good friend and someone I think highly of. I have never met Candidate B but assume he is a good lawyer, a good person, and a hard worker.

Candidate A has been practicing law since 1987. He is a board certified civil trial lawyer, has tried over a hundred jury trials in a variety of civil cases and regularly serves as a mediator. Candidate B has been practicing law since 2005 and has tried 30 felony cases. The Columbus Bar Association, which interviews and assesses candidates, “highly recommended” Candidate A.  Candidate B was rated as “acceptable.”

Based on these objective criteria, you would think Candidate A won the election last Tuesday, but that’s not what happened. Candidate B won, and it’s likely he won because of something that was given to him: a common last name that resonates with voters when they have no other basis upon which to cast their vote.

I don’t mean to be critical of Candidate B. My focus here is not about people but about the process.

The problem with judicial races being determined on the basis of last names is hardly a newsflash. Plenty has been written about the name game in judicial races and that when electing judges, it’s justice in name only.

Why is nothing being done about the problem? Amending the state’s constitution is a big challenge. The political parties like the status quo and are good at convincing the public that there’s foul play behind any effort in moving to a system where candidates are appointed.

It’s sad, because judges should be selected based on their qualifications, but for now, last names matter more.

What’s your view?  I’d like to know.

__________________________________________________

Jack D’Aurora writes for considerthisbyjd.com

___________________________________________________