by Samuel L. Rubinstein, American Constitution Society Strategic Engagement Fellow
As attorney Jack D’Aurora persuasively argued in a recent column in the Columbus Dispatch, rampant spending and lax ethics rules have contributed to a crisis of confidence in the Ohio judiciary. According to the Brennan Center’s New Politics of Judicial Elections Report, in 2014, more than $3.2 million was spent on Ohio Supreme Court races alone, the 5th most in the nation, with more than 22% of that coming from outside groups. This isn’t new, as Ohio saw more TV ads for Supreme Court elections than any state, every year in the 2000-2009 decade.
The kind of rampant spending seen in Ohio hurts judicial independence. Studies sponsored by the American Constitution Society found that the rising tide of money flowing into judicial elections influences how judges decide cases. For example, the more campaign donations judges receive from corporate interests, the more likely they are to decide cases in favor of business interests. After “soft on crime” attack ads have run in their state, judges are also less likely to side with criminal defendants. As spending on judicial elections increases, judges grow more likely to decide election-dispute related cases in favor of the interests of their own party. And if all of this is not enough, raising large amounts of money may play a role in a state bench that does not reflect the communities that it is supposed to serve, with white men holding a disproportionate share of judgeships. The decisions judges make on vitally important legal issues are increasingly influenced by moneyed interests rather than abstract notions of justice or the needs of people.
Exacerbating the era of big money in judicial elections is the fact that very few states have meaningful protections against justices hearing cases involving their donors. The Center for American Progress ranked Ohio’s judicial recusal rules regarding donations just 35 on an index of 100 points. Consequently, litigants frequently challenge the impartiality of judges without a satisfying resolution.
Ohio is an outlier among states in how it selects its judges. Thirty-four states use some form of the “Missouri Plan,” a nonpartisan commission that recommends judicial candidates based on merit, and the Governor or another authority selects nominees from the list. Since merit selection appointments are often accompanied by a retention election, voters can choose to keep the judge or reject them, starting the process anew. In one state with judicial elections similar to Ohio’s system, Pennsylvania, former governors of both parties gave strong support to a proposal for merit selection that is advancing.
Now is the time for Ohio to adopt a merit selection system. Ohioans need to be able to rely on judges to protect them and their rights, not just protect campaign donors.