Let’s admit that state judges are politicians, too
Let’s admit it. Like it or not, state judges are politicians, and their party affiliation should be shown on general ballots, just like it is for every other politician.
Party affiliation is not disclosed on judicial ballots because we like the fiction that judicial races are nonpartisan and, perhaps we’re even a little enamored of the idea that judges are above the political fray. It’s a quaint notion that doesn’t reflect today’s reality.
We just saw bare-knuckled attack ads in two races. Appellate court judge Jennifer Brunner was criticized for supposedly putting children at risk because of an evidentiary ruling she made concerning a teacher accused of surreptitiously videoing underage girls undressing. Ohio Supreme Court Justices Judith French and Sharon Kennedy were said to be protecting rapists because of their rulings upholding the caps on damages available in civil rape cases.
We’ve seen this before. In 2000, an ad featuring the scales of justice filled with money announced that Ohio Supreme Court Justice Alice Robie Resnick received $750,000 in campaign contributions from trial lawyers and asked, “Is justice for sale in Ohio?”
Were all these messages taken out of context and in bad taste? Sure, but show me a political ad that is balanced and truthful. Judges might not want to think of themselves as politicians, but those in the messaging business sure do.
The average voter has no clue about a judicial candidate’s qualifications, but one thing the average voter does know is a candidate’s political affiliation – because the parties advertise their endorsements. Look at what just happened in Franklin County. Democrats won all 10 judicial races, even when running against Republican incumbents.
Does job performance have anything to do with this? Not likely. Republican Jenifer French lost her job, even though the Columbus Bar Association gave her the third highest rating among 17 common pleas court judges. Veteran domestic court judge Dana Preisse, a Republican, lost her seat, and she was highly rated.
Bottom line: if you want to serve as a judge in Franklin County and you’re a Republican, look for another line of work.
It’s no different for statewide judicial races. Republican incumbent Kennedy held off Democrat challenger John O’donnell, a reflection of Ohioans voting Republican at the top of the ballot. The exception was incumbent Republican Justice French’s loss to Democrat challenger Jennifer Brunner. Neither has what are regarded as good candidate names – O’neill or Brown in Franklin County; Corrigan or Mcmonagle in Cuyahoga – but Brunner’s prior service as secretary of state might have made the difference.
Aren’t Supreme Court justices obligated to disregard party affiliation when rendering decisions? Certainly, they are. “My job as a judge is to be an umpire, to call balls and strikes,” French has stated. “It’s not to bring my own personal biases into the cases in front of us. And that is that. There are times when I may not like the result at all.” French’s sentiment is noble, but party affiliation determines what strike zone a justice sees.
Justices might believe their party affiliation has nothing to do with how they vote, but that’s conscious level thinking. Subconsciously, justices bring the same filters and biases we all have, and they generally subscribe to the policies advocated by their party.
I’ve written plenty about the serious and many shortcomings of judicial elections and the advantages of a merit appointment system based on objective criteria. Until the day comes when we change the system – likely never, regrettably – judicial elections should at least reflect reality.
Jack D’aurora is a partner with The Behal Law Group and produces a podcast, Lawyer Up! Columbus