Ohio Talkin' Judicial Reform

What brings Ted Strickland, Bill Harris, Bill Batchelder, Armond Budish, Chris Redfern, Kevin DeWine, and Tom Moyer together in the same room, without resulting in bloodshed or the selling of our state to Michigan in return for casino revenues?

You want this answer to be the budget crisis, don't you?

Well, while not quite rising to the level of saving our state's fiscal bacon, this week did accomplish just that feat in the name of judicial reform. For the past two days, a virtual "who's who" of the Ohio legal and political community descended on the Ohio Supreme Court in Columbus to discuss the need for changing the way we go about selecting our judges in the Buckeye State.

Spurred on by unflattering press (and, one hopes, intrepid bloggers), the conference was titled "A Time For Action," and was hosted by Chief Justice Thomas Moyer, The Ohio State Bar Association, and the League of Women Voters of Ohio Education Fund.

The goal? To start a legitimate conversation about how to fix Ohio's broken judicial election system. From 2000-2006, Ohio television viewers saw roughly 5x the number of ads for Ohio Supreme Court candidates as viewers in any other state, at a cost of a whopping $20 million (double that of the next closest, That State Up North). If perception is reality, then all that money is influencing the votes on Ohio's high court: 83% of Ohioans polled feel campaign contributions to judges influence decisions, including an incredible 50% of judges!

For Democrats, the problem of privately funded judicial elections is especially acute, as we stink at them: Republicans outspend Democrats in Ohio Supreme Court elections by a wide margin, despite the supposed "non-partisan" nature of the office. (In case you needed a reminder, we've currently got a big, fat goose egg on the Court...and I'm not talking about Chris Christie or William Howard Taft.)

So, what's a state to do?

Calling on experts from around the country, the Court entertained a number of proposals. Highlights after the jump.

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-Public Financing. We're all very familiar with the check box on our tax forms for Presidential elections, which allocates a small amount from all those participating to a fund that candidates can opt into in order to finance their campaigns. The model for publicly financing judicial candidates would be very similar.

The drawback? This method of financing campaigns does nothing to prevent a judge from bypassing public financing and running on massive private (or corporate) coffers, as nearly every presidential candidate in the past 30 years has done. It's a nice idea, but it needs more teeth. Some states implementing these sorts of caps (like North Carolina) match private funds if one candidate choses to opt out, which helps. Still, those funds are often capped (typically at a far lower level than an intrepid privately-financed candidate could attain on his own), and don't go far enough to correct for imbalances.

-Nominating Commissions. 33 states and D.C. use nominating commissions to select judges. These commissions are typically made up of lawyers and non-lawyers, sitting judges, and constituency groups who review applications, interview candidates, and make recommendations to the appointing authority (usually the Governor). These commissions vary in degree of "public-ness," with Arizona being the lone state to make all parts of the process open to public participation.

Ohio presently employs a similar system to this one to fill vacancies that arise between elections. While this model of selection removes the initial decision on a judge from the hands of the public, voters to do get a voice during re-appointment elections (see below) The success of these commissions in states that have adopted them is nearly unquestioned, as they provide an opportunity for those with the most at stake (litigants and attorneys) in choosing judges a strong voice in the process.

-Performance Evaluations. Every job I've ever had has required me to be evaluated from time to time on how I'm doing, the theory being that if I'm not up to snuff, I'm history. These performance evaluations would not go that far, but the basic idea of accountability remains intact. A commission (likely separate from the nominating commission) would judge judges on a number of set criteria (i.e. judicial temperament, balance, attorney and litigant evaluations, etc.) and assign them a score based on that evaluation. The evaluation would be periodic and regular.

Good idea, right? While it's a long overdue thought that judges should be accountable for their rulings, these evaluations do have limits. While you or I might be fired for a bad performance, judges in all likelihood would not face the axe. Instead, the evaluations would be published for public consumption during the "rubber stamp" election.

Again, good idea...but requiring the public to be aware of performance evaluations without recourse to advertising good or bad results puts too much faith in a busy public to do research on often labyrinthine government websites is asking a lot. Too, a second commission would not be free, and could prove a stumbling block fiscally.

-"Rubber Stamp" Elections. Ah, the "rubber stamp" election. Here's how it would work: Judge A is appointed by the nominating commission, reviewed by the evaluation commission, and goes on the ballot without competition for a confidence vote. If the voters decide he stinks, he ends up shilling for a living. If not, he stays.

This again brings forward the idea of accountability, and does so fairly well. That said, it puts a great deal of faith in an unelected commission to chose our judges, and provides voters with only a veto of the truly bad ones. This proposal tries to split the baby between the need to provide voters a voice, and to remove political considerations from the fray by not allowing a Governor or other elected the power to unilaterally stuff a court.

It is what it is, and it succeeds at that endeavor where it's been tried.

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Bottom line? None of the proposals explored this week solves the problem by itself, and all of them have major flaws that in isolation could prove damning. That said, together they do an admirable job in other states of reigning in spending in judicial elections, and they bring a balance to the equation that our current elective system lacks.

While no agreement was reached this week, all this talk about change isn't just idle chatter. The Ohio Supreme Court has wide administrative powers, and can go a long way to implement change on its own. Additionally, OhioDaily has learned that House Speaker Armond Budish is drafting a joint resolution calling for reform, and has the backing of Chief Justice Moyer and a number of other strong Republican voices. The bill is still formative, but may see a vote as early as the spring session of the General Assembly.

In what has been a dismal year for a deadlocked legislature, the movement for judicial reform may prove a real, bipartisan accomplishment. Who'da thought?