Ohio's Big Spending on Supreme Court Election

Bill Rice- Texas Governor George W. Bush runs a bit late for his appearance early this summer at a Republican rally in downtown Cleveland. So to fill time and keep the crowd occupied, organizers hastily recruit some local party hopefuls to talk up their candidacies.

Terrence O'Donnell- I was raised the son of police sergeant....

BR- Ohio appellate Judge and Supreme Court Justice candidate Terrence O'Donnell delivers a typical judicial campaign speech - where he grew up, where he went to school, his years of experience as a lawyer or judge, and perhaps a bit about his judicial philosophy. O'Donnell is the Republican choice to take on Justice Alice Robie Resnick in November. Compared to most campaign rhetoric, O'Donnell's remarks are remarkably tame.

Ohio law bars judicial candidates from discussing specific issue or specific cases in their campaigns. That's because, in theory anyway, judges are viewed as independent and above the political fray. The restriction leaves candidates with not much to talk about, says Ohio Democratic Party Chair David Leland.

David Leland- It's very difficult, and I'm not sure I agree with that particular limitation, but that's the limitation that we have in this race. It then becomes up to me and people like me to talk about the issues in this race.

BR- The issues, says Leland, center around two close high court decisions that overturned Republican-backed legislation. One involved a tort reform bill that put caps on the amount of damages a plaintiff could be awarded; the other, an education spending bill that attempted to satisfy a previous court edict to devise a more equitable formula for paying for public schools.

Those decisions so rankled Republicans that they've mounted an intense effort to unseat Resnick, who wrote the majority opinions in both cases. Much of that effort will involve "issue advertising" paid for by special interests.

Seth Anderson- On one side we're seeing teachers and trial lawyers and unions supporting the incumbent Democrat, and on the other side business, insurance, defense.

BR- That's Seth Anderson, a researcher at the American Adjudication Association in New York City, one of many groups watching the Ohio race this year. Anderson says this kind of special interest soft money, so common in legislative and executive office campaigns, has until recently been relatively rare in state supreme court races. He and other constitutional scholars see it as a problem if the court is to provide an adequate check to the other two branches.

SA- The judiciary must be free as a branch and its individual officers must be free of political pressures, majoritarian opinion, so that they can enforce the constitution and the rights of minorities and individual rights against the momentary tyranny of a majority. That without that core function of independence the judiciary ceases to become an individual third coequal branch and essentially becomes an agency within the legislature or the executive branches.

BR- Money is increasingly seen as the key pressure point in judicial politics, especially in Ohio, which could boast a national record in supreme court campaign spending after the fall race is over. Some feel the influence of money in judicial campaigns provides a good argument for doing away with Supreme Court elections and adopting another method of choosing justices. Justice Alice Robie Resnick has said as much - her statement appears on a League of Women Voters website. And the sentiment cuts across party lines. Bob Bennett is a lawyer, and chairman of the Ohio Republican Party.

Bob Bennett- It's not a good system in the sense that if you're a member of the legal profession it's a system you should be uncomfortable with.

BR- Bennett says he'd prefer a sort of hybrid selection system: The governor would appoint a justice, who would serve a limited term and then be subject to what's called a retention election, where voters would decide to keep or replace him. Under this system, Bennett says, voters still have some measure of say in who sits on the Supreme Court bench.

BB- And if we have a bad judge then we can get rid of that judge by saying no, and then go through the process again. Then I think most governors would appoint a centrist judge without driving them into a specific camp or the other.

BR- That's just one alternative method of selecting justices. As Seth Anderson put it, there are about as many variations as there are states in the union, and none are without flaws. The debate has been around throughout American history, and some states have altered their method more than once. The last proposal to change Ohio's back in the 80's was defeated, leaving the status quo firmly in place. The fireworks in the Resnick/O'Donnell race should start popping right around summer's end.

In Cleveland, Bill Rice, 90.3 WCPN 90.3FM.

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