Faced with the use of modern, media-dominated campaigns to elect judges, most states have adopted some form of judicial appointment. Many also use retention elections, in which voters pass judgment on judicial performance.
Not in Ohio, the only state where judges run in partisan primaries, then nonpartisan general elections.
“Merit selection” is the term usually applied to systems in which judges are appointed.
Ohio voters have rejected merit selection twice, in 1938 and 1987. The legislature stripped the idea from a package of judicial reforms in 1968. Conferences on judicial reform have twice made recommendation for merit selection, in 2003 and 2009, but the issue never made it to the ballot again.
Ohio has instead what amounts to a political appointment process. Forget partisan primaries; more than half of all judges first get on the bench through gubernatorial appointment, filling vacancies created when judges of the same party affiliation as a sitting governor step down early.
Party bosses then make recommendations to the governor, who can appoint anyone who meets the only qualification to be a judge — six years practicing law, even for a seat on the Ohio Supreme Court.
Maureen O’Connor, former Summit County judge and prosecutor and first woman to serve as chief justice of the Ohio Supreme Court, makes those points (and more) in a recent proposal for improving judicial elections in Ohio.
Besides the erosion of public confidence in fairness, O’Connor also notes chronic undervoting in judicial races (about 25 percent don’t cast votes in judicial contests) and widespread evidence that voters have little information about candidates.
There is ample evidence of voters playing the “name game,” parties happy to oblige by recommending or nominating candidates with familiar sounding, ballot-tested names.
O’Connor takes aim at what ails the judicial system with an eight-point plan. She recommends rotating candidates on the ballot so that judicial candidates don’t always end up at the bottom of the ballot and holding all judicial elections in odd-numbered years, avoiding clashes with big races in even-numbered years. She would like to see the return of a voters guide to judicial candidates and other methods to get more information to the public.
The centerpiece of the plan is the elimination of partisan primaries, eliminating all party labels in races for judge.
Also on her list is a nonpartisan system for making recommendations for filling judicial vacancies, requiring Senate confirmation for appointments to vacancies on the Ohio Supreme Court and increasing the qualifications for holding office to 10 years for common pleas judges, 12 years for appeals court judges and 15 years for supreme court justices.
Finally, O’Connor recommends increasing judicial terms from six years to eight to 12 years, depending on the level of responsibility.
No question, the proposal would improve the system, most notably by elevating the years of experience needed to hold judicial office and the length of terms. As with past efforts at reform, the underlying question is what kind of coalition can be assembled to back the changes.
Here, the chief justice is in trouble. Party regulars are unlikely to embrace the end of partisan primaries and a nonpartisan system to recommend candidates for judicial vacancies. Under a nonpartisan system, they could be forced to spend heavily in both primaries and general elections to get their candidates elected, stretching fundraising efforts.
Good-government groups and the Ohio Bar Association, on the other hand, may be unwilling to totally abandon the idea of merit selection, which O’Connor dismisses as politically dead.
To such groups, merit selection for appeals court judges and supreme court justices is most attractive, with voters electing common pleas and municipal court judges, who operate closer to the people.
O’Connor also avoids taking a stab at reforming campaign finance rules for judicial campaigns, despite recent Ohio Supreme Court races that have drawn national attention because of high spending. Public funding of judicial races would avoid any appearance of conflicts of interest, but O’Connor never mentions the subject, despite emphasizing public concerns about judicial independence.
Hoffman is a Beacon Journal editorial writer. He can be reached at 330-996-3740 or emailed at email@example.com.