In 1987, Ohio voters rejected a ballot issue that would have
created a system of merit selection for justices of the Ohio Supreme
Court and judges on the state appeals bench. They did so
overwhelmingly and, thus, the discussion ended. That is, until the
2000 and this year's elections for the high court. Chief Justice Tom
Moyer described the most recent campaigns as ``an embarrassment,'' a
visit to the ``dark side of democracy'' and harmful to the precious
concept of an independent judiciary.
Two years ago, the Ohio Chamber of Commerce, desperate to change
the makeup of the court, supported vicious television ads against
the incumbent, Justice Alice Robie Resnick. The spots recklessly
asserted that Resnick sold her votes on the Supreme Court for
campaign money.
This fall, no single ad was as powerful in its imagery. Several
groups aired spots. They took the same approach: Justice for sale.
Elect the right person, and he or she would deliver what the special
interests wanted for their campaign contributions. These groups
operated independently of the candidates, spreading half-truths and
distortions with no legal obligation to reveal the source of their
money.
Their collective and disturbing impact spurred the chief justice
to warn: ``The Ohio justice system is not the playground of clever
media spinners.'' Wishful thinking? Many in legal circles and beyond
have recoiled at the mud-slinging and revived talk of finding a
better way to select justices.
Directly elect justices, especially when the stakes are high,
when the courts look at controversial matters from school-funding to
the rules for liability cases, and the result will be campaigns that
attract intense interest. Thirty states have opted for another
approach. Many call for the governor to appoint justices to the high
court via a bipartisan commission that makes recommendations. The
legislature may have a role in confirmation. Typically, the selected
justice serves for one, two or three years on the court and then
faces a retention election to complete a full term of, say, six,
eight or 10 years.
The justices are not removed entirely from the political fray.
Neither are federal judges, who are appointed to life terms by the
president and confirmed by the Senate. Enough distance would be
created to preserve the principles of judicial independence and
integrity. Voters would still have a voice in assessing the
performance of justices. On an Election Day, they could toss a
justice off the bench.
The measure defeated by Ohioans 15 years ago took a similar
approach. Moyer has not pressed to revive that specific plan. He has
proposed the formation of a commission to make recommendations on an
appropriate course for Ohio toward merit selection. Gov. Bob Taft,
the Ohio State Bar Association, civic and business leaders across
the law should jump forward to aid the chief justice.
They should also push the interim steps proposed by Moyer in May
and reiterated in the aftermath of the election. The chief justice
points to troubling surveys that find eight in 10 Ohioans think
fund-raising has some or a great amount of influence on a judge. He
wants to ensure quality and crediblity on the bench.
Moyer has called for lengthening the terms of all judges to at
least eight years (from the current six). That should certainly be
the case at the appellate level. Thirty-five states have terms of
more than six years.
The chief justice wants Ohio to adopt the American Bar
Association Standards on Judicial Qualifications. A broad-based
panel would assess and report whether candidates have the legal
knowledge and temperament to serve. In Akron, the local bar
association offers a similar evaluation of judicial candidates. It
has proved helpful.
In addition, Moyer would require judicial candidates to have a
minmum of 10 years of legal practice for trial courts and more than
10 for the appellate benches. Ohio currently requires six years. He
wants independent committees to report their spending and
contributions. He wants judicical campaigns to do so more often.
Other states supply voters with information about judicial
candidates, a guide of sorts. Moyer would like Ohio to do the same.
He has proposed that legislators look at public funding of Supreme
Court races. In many ways, these races provide an attractive vehicle
for testing the concept.
That may be far more than state lawmakers are willing to explore.
Surely, they see the virtue in lengthening terms, enhancing
qualifications and exposing the political money trail. In January,
Moyer plans to convene a one-day forum to discuss such matters. He
hopes for momentum. In that way, Bob Taft could make a difference,
giving the forum a high profile, spending a bit of his impressive
stock of political capital.
Almost everyone recognized it would take something extraordinary
to rekindle the notion of merit selection. It has. The past two
election seasons have produced such ugly races for the Supreme Court
the question now resonates: What can be done? Tom Moyer has taken
the lead. He could use some help. Ohio could use a better way to
select its
justices.