ABA Division for Bar Services: Bar Leader Magazine

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Is justice for sale in Ohio?
Legal profession proposes reforms in judicial selection process

By Robert J. Derocher

As the narrator in the television commercial intones about an Ohio Supreme Court justice’s campaign contributions, "Lady Justice" lifts her blindfold and smirks pleasingly as cash is heaped onto the scales. She uses her sword to shovel out the money. She later topples over as the narrator asks plaintively: "Alice Resnick: Is justice for sale?" For the judges, lawmakers and public officials who viewed the ad at The National Summit on Improving Judicial Selection last December in Chicago, it was further proof that something must be done to curb costly, mean-spirited and highly partisan elections that cast doubt on the fairness and impartiality of judges and the judicial system. As a result, summit members in January issued a 20-point Call to Action to improve the selection process in states that hold judicial elections.

Among the recommendations:

Public financing of some judicial elections.
Across-the-board non-partisan elections.
Limits on campaign contributions and public disclosure of contributions and spending, particularly contributions from outside groups and political parties.
Establishment of monitoring groups, led by state and local bar associations and respected civic organizations, to encourage fair and ethical judicial campaigns and to mediate candidate disputes.

The summit, hosted by the National Center for State Courts, also laid the foundation for a nationwide Symposium on Judicial Campaign Conduct and the First Amendment, which will take a closer look at canons of judicial conduct, state laws, financial disclosure and free speech in order to promote "fair elections," summit members say. The symposium is scheduled for November; the location is undecided.

While some observers question whether the summit’s recommendations can be implemented, or if they will have an impact in the dozens of states that hold some form of judicial elections, most agree that the Call to Action contributes to the growing discussion of election reform. And with the public awareness of the judiciary heightened by the 2000 presidential election drama, this could be a prime time, they say, to seriously explore changes.

"I think there’s a growing national sense that we need to do something about judicial elections," says Thomas Phillips of Austin, chief justice of the Texas Supreme Court and former chair of the Conference of Chief Justices, who helped lead the summit. "(The Call to Action) is a good harbinger of reform."

An unusually high turnout of lawmakers and state chief justices, along with the near unanimous support of the recommendations (just one participant objected to all of them, although several people objected to some) was an indicator of the summit’s success--and the need for change--says Roy Schotland, a Georgetown University Law Center professor who helped coordinate the meeting. "I think we’ve got better momentum and a better base than we’ve ever had before."

Merit selection losing favor
One of the key issues to emerge from the summit, says Schotland of Washington, D.C., is the recognition that merit selection of various judgeships--while favored by many in the legal community--is losing favor, particularly among the voting public. Perhaps the most interesting result from Florida last November was not the Bush-Gore debacle, he says, but a statewide referendum for merit selection of some judges that was crushed by the voters. Thus, making changes to the elective systems in states could become the best way to effect reform, he adds. For some states that elect their judges, reform cannot come fast enough. In Michigan, an estimated $15 million was spent last year in three state Supreme Court races, much of it coming from special interest groups and trial lawyers. Attack ads accelerated, including one particularly controversial ad showing an insurance executive looking into his "pocket," where there were caricatures of three justice candidates.

In Ohio, where an estimated $8 million was spent on two judicial races, the inflammatory "Lady Justice" commercial was followed by an ad featuring piles of cash being dumped on what appeared to be Resnick’s desk as a robed actress debated a decision involving campaign contributors. Both ads were sharply criticized by the Ohio State Bar Association, not for attacking Resnick, but for implying that judges could be bought in Ohio and for impugning the integrity of the justice system, says Reginald Jackson Jr., of Toledo, the state bar president. Jackson says voter backlash over the ads may have actually helped Resnick win re-election. The summit’s Call to Action, he says, will likely provide some ideas and guidelines as the bar presses for changes in the election process.

"We were very heartened by (the summit) and it’s consistent with the direction we’re taking in Wisconsin," says Roger Bybee of Milwaukee, communications director of the Madison-based Wisconsin Citizen Action, a group active in reforming judicial elections the state. "I think it recognizes the very corrosive effect on public confidence that special-interest money can have on the judiciary."

State lawmakers are reviewing a measure that may make Wisconsin the first state to authorize full public funding for Supreme Court races. A bill that called for public funding was approved in the Senate last year, but did not get through the Assembly in time, says Carolyn Castore, the group’s legislative director. The measure has been refined this year, and introduced into the Senate. "It’s positioned better this year," Castore says.

A clarion call
The Call to Action also won praise from A.P. Carlton Jr. of Raleigh, N.C., chair of the American Bar Association’s Standing Committee on Judicial Independence. He calls the recommendations "a clarion call for the states to begin a review of their judicial selection. There needs to be a model, and I think that’s what the Call to Action is looking for."

The ABA’s Commission on Judicial Selection Standards last summer developed selection standards compatible with either election or merit selection, and Carlton says the committee is also in the midst of a two-year study of public financing for judicial campaigns. Echoing Schotland’s observations, Carlton says the summit is important because "the political realities are that in those states with a judicial election, it’s not likely that things will change any time soon." But to some, the Call to Action is more of a whisper than a wake-up call. "There is no doubt they’re moving in the right direction. But this falls way short of what’s needed," says Cristen Feldman of Austin, staff lawyer for Texans for Public Justice, a public interest and policy research organization. "This is inching along. It’s not going to solve the problems by any means."

Feldman says the Call to Action should have been more forceful in suggesting that judges recuse themselves from cases involving campaign contributors and for demanding higher ethical standards for judges and judicial employees. Judges also need to set examples by refusing potentially influential campaign donations and for setting better ethical standards, says Feldman, who was critical of Chief Justice Phillips for not taking the lead in Texas. Texans for Public Justice has criticized Phillips in the past for taking in over $1 million in campaign contributions. Phillips said the money has had no influence on his decisions.

Jackson of the Ohio State Bar Association also questions public financing, saying more should be done to require full financial disclosure and reporting and to explore the influences of "soft money" from outside groups, which played such a big role in the Ohio judicial races. "Public financing sounds good, but it probably runs head-long into the First Amendment, and (taxpayers) saying, ‘Why should we pay for someone else to get a job?’" he says.

Georgetown’s Schotland hopes that issue and others will be debated and reviewed more carefully at the planned symposium, in which he hopes bar leaders will play an important role in organizing, overseeing and leading discussion. "The bar leaders have to say, ‘OK, if the court isn’t moving forward, we’re moving forward,’" he says.

Feldman and others agreed that the public’s skepticism of the judiciary’s handling of the 2000 presidential election has heightened interest in reform--and that it would be wise to seize that interest before it fades. "More than any time in the recent past," says Feldman, "the public is prepared for a debate of the judiciary."

The author is a writer from Fairfax, Va.