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Merit Selection Isn't the Answer to Ensuring a Better High Court

By David J. Owsiany
April 16, 2004
Below is an Op-Ed piece written by David J. Owsiany that appeared in The Columbus Dispatch on Friday, April 16, 2004.

Big money is being poured into the campaign coffers of the candidates for the Ohio Supreme Court. Two candidates in a contested race for an open seat on the court spent a record total of $670,000 in last month's Democratic primary. Republican candidates, two of whom are incumbents, are reported to already have raised in excess of $300,000 each for the three contested court seats up for election in November.

Recent news reports have noted that outside groups are expected to pour millions of dollars into the races that will determine the makeup of Ohio's top court.

These campaign-related expenses continue a trend that began in the 1990s, when Supreme Court elections began to draw big-dollar contributions and expenditures from unions and trial lawyers on one side and business interests on the other.

So-called independent groups weighed in by running TV ads painting particular candidates in a positive or negative light, depending on the group's agenda.

Why have judicial elections become so divisive, expensive and nasty? Because the stakes have gotten so big.

During the past decade, an activist majority emerged on the court that ignored the judiciary's traditional role as an independent arbiter and began usurping the policymaking authority of the General Assembly.

For example, teachers unions that wanted more state funding for schools and teachers' salaries didn't get their way at the Statehouse so they turned to the courts. In response, the Supreme Court struck down Ohio's school funding system four times since 1997, despite the fact that funding has nearly doubled in the past 10 years, not to mention the fact that the Ohio Constitution clearly leaves the authority to fund schools to the discretion of the General Assembly.

When legislators passed a tort-reform statute to add common-sense reforms to Ohio's civil-liability system, the trial lawyers went to the Supreme Court in 1999 and successfully enticed a four person majority of the seven-member court to strike down the new law.

Because the court's activist majority engaged in a systematic usurpation of legislative authority on major issues, including school funding, civil-justice reform, workers' compensation reform, and taxing-and-spending issues, special interests began treating judicial elections like any other elections for political office.

Some commentators, including Chief Justice Thomas Moyer, have suggested the answer is to move to a system of merit selection, where a nonpartisan commission would make nominations to the governor for appointment to the court, supposedly based on candidates' qualifications. Others have suggested modeling state Supreme Court appointments after the process for selecting federal judges by having the governor make appointments with the advice and consent of the Ohio Senate.

The problem is that changing the method of selecting judges is no guarantee against politicization of the judiciary. Since the 1960s, the federal judiciary has been mired in activism, as a majority of justices have sought to make public policy from the bench in various areas including racial preferences, abortion and criminal rights.

As a result, in the 1960s and early 1970s, there were public calls for impeachment of the activist U.S. Supreme Court justices, including Chief Justice Earl Warren and Justice William O. Douglas. Since the 1980s, confirmation battles in the U.S. Senate over judicial nominees have become increasingly bitter.

States that have adopted merit selection, such as Missouri and Florida, have not been immune from the politicization of the judiciary, either. Special interests still battle to influence who gets on the list of potential nominees. Some critics have found merit selection especially unsettling because the deals that lead to candidates being nominated are made behind the scenes with little or no public input.

Additionally, many states with merit selection also have struggled with excessively activist judges who overreach in cases involving school funding and civil justice reform, just as in Ohio.

It is not the process of selecting judges that will preserve the independence of the judiciary. It is the character of the men and women who serve on our courts that will determine the future of Ohio's court system. They must resist the temptation to act as omnipotent policymakers and remember their role is one of interpreting the law, not making it up from the bench.

As long as Ohio continues to elect judges, voters must hold judicial candidates accountable on Election Day if they don't commit to maintain their roles as independent arbiters.

David J . Owsiany is the senior fellow for legal studies with the Buckeye Institute.