Judicial Impartiality and Fairness

 
ENSURING AN INDEPENDENT AND IMPARTIAL JUDICIARY

The Constitution demands that courts be fair and impartial…[and] when judicial election campaigns degenerate into politics as usual, then campaign cash and special interest pressure threaten the rule of law.” – Bert Brandenburg, executive director of Justice at Stake, a Washington-based nonpartisan group that tracks judicial politics.

In Ohio, it is readily apparent that the independence and impartiality of the judiciary is under attack. Thomas Moyer, the Chief Justice of the Ohio Supreme Court, has described the problem as follows: “Anybody who places their trust and confidence in a constitutional democracy should be outraged by the expense and special-interest involvement in the 2002 judicial elections in Ohio. This is the dark side of democracy.”

A recent analysis of Ohio Supreme Court case decisions “found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. [One justice] voted for his contributors 91 percent of the time, the highest rate of any justice on the court.” Adam Liptak and Janet Roberts. “Campaign Cash Mirrors a High Court’s Rulings.” New York Times (page 1); October 1, 2006.

Ohio’s system of judicial elections is broken and in need of reform. A 2002 Capital University Law Review article argued that “although there may be no good method of selecting and retaining judges, there is a worst method, and Ohio is among the states to have found it. That worst method is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants, and special interest groups, and retain their offices only by continuing to raise such funds. Paul D. Carrington and Adam R. Long (2002). “The Independence and Democratic Accountability of the Supreme Court of Ohio” (page 472). Capital University Law Review 30:455-487.

Many states have adopted merit selection in an effort to remove the judiciary from the political process. The American Bar Association reports that “merit selection was proposed as a means of separating judges from the election process that shapes the selection of legislators and executive officers. As it has evolved, a nominating committee that is comprised of both lawyers and non-lawyers presents the governor with a list of nominees from which the governor selects an appointee. After a stated term, the judge then stands for an election with no party affiliation and no opponent. The judge will be retained if he or she receives a certain percentage of the vote. Twenty-five states and the District of Columbia use some type of merit plan for selecting some or all of their judges. (In five other states, the governor or legislature appoints judges without a nominating commission.)

Judicial handout(abanet).pdf.

The LWVO has long backed merit selection, but it has not been embraced by the voters of Ohio. Nonetheless, Ohio voters are not satisfied with the current system. A 2002 poll commissioned by the League of Women Voters of Ohio Education Fund found:

  • Two-thirds of voters believe Ohio’s judicial campaign finance system needs reform;
  • One in three believes that campaign and fundraising rules for judicial candidates should be stricter than those for other candidates; and
  • Four out of five (83 percent) believe that campaign contributions influence judges and candidates more than any other factor.


The Escalating Costs of Judicial Campaigns and the Instrusion of Special Interest Groups

The nonpartisan Justice at Stake Campaign reports that being elected is increasingly related to raising the most money. In Ohio, more money was spent on judicial campaigns (click here for report) in 2000, 2002 and 2004 than in any other state. In fact, in 2004, three of the four successful Supreme Court candidates each raised more than $1 million. Judicial candidates are raising large sums, often from those with their own political agendas. And special interests groups spend even more “soft money” to influence voters. Therefore, it is no wonder Ohioans question whether money influences judicial decisions.

Ohio Supreme Court Justice Paul E. Pfeifer describes the problem this way: “Everyone interested in contributing [to judicial campaigns] has very specific interests. They mean to be buying a vote. Whether they succeed or not, it’s hard to say.” Adam Liptak and Janet Roberts. “Campaign Cash Mirrors a High Court’s Rulings.” New York Times (page 1); October 1, 2006. From Ohio judges’ perspective, a 2002 poll by Justice at Stake revealed that:

  • A majority of Ohio state judges are dissatisfied with the conduct and tone of judicial campaigns, compared to only 44 percent of state judges nationally;
  • More than two-thirds of Ohio state judges feel pressure to raise money for their campaigns during election years, while nationally, less than half (46 percent) of state judges feel that pressure; and
  • Three-quarters of Ohio state judges are very concerned that “special interests are trying to use the courts to shape policy to their own ends,” compared to 60 percent nationally.

There are various ways to address the problem of money in judicial campaigns:

  • One approach might be to move toward public funding or partial public funding of judicial elections. However, public funding has had at best limited success in other arenas, such as presidential elections.
  • Another approach is to require more transparency and timely reporting of campaign contributions.
  • Stricter recusal standards could be developed to require judges to disqualify themselves (or be disqualified) in trials involving parties or counsel who have made significant campaign contributions.
  • Ohio’s current Code of Judicial Conduct, Canon 3, E(1) states that A judge shall disqualify himself or herself in a proceeding in which “…the judge’s impartiality might reasonably be questioned including but not limited to instances where….” The specific circumstances cited in the Canon do not include the circumstance where the judge has received significant campaign contributions for a party or attorney appearing before him or her.


The Non-Competitive Nature of Many Judicial Races and Appointments

It is something of a puzzle that notwithstanding Ohio citizens preference for an elected judiciary, fully half the judges in Ohio get their start on the bench by winning an appointment by the governor to a vacant seat.. This matters a great deal because, once appointed, most sitting judges go on to win election to a full term. Governor Strickland has sought to reduce the politics in the process and improve the caliber of judges by establishing a bi-partisan committee composed of attorneys and non-attorneys that makes recommendations to the governor about candidates for judicial vacancies.

Compounding this, in 2000, for example, less than one-third (29 percent) of Ohio’s state judicial candidates were involved in contested elections. [This could have been in part because, as in other elections, there is a tradition that the major political parties in counties such as Franklin and Hamilton make deals dividing up court seats so that judicial races will be uncontested. As Catherine Turcer, Legislative Director for Ohio Citizen Action, noted, “When you make backroom deals, that means voters don’t have a choice. And when voters don’t have a choice, they are not getting the best they can get.”


The Voters' Lack of Education About Judicial Candidates

Informed voters are a crucial part of judicial reform, particularly as judicial elections have become increasingly expensive, negative and influenced by special-interest groups… Since most citizens do not routinely interact with judges, many voters do not know much about them, which can make choosing among judicial candidates difficult. As Justice in Jeopardy (page 78) argues:

“The potential for single-issue groups to influence judicial races may be heightened by the general absence of voter interest and participation, insofar as it may then be easier for a comparatively small, highly motivated block of voters to affect the results.”

  • The information voters receive about judicial candidates is often “…communicated largely via advertising run either by the candidates themselves with money from contributors whom the public suspects of buying influence, or by outside groups whose largely unregulated and often misleading negative campaigns have helped to undermine public confidence in the courts.”

It is worth considering what information would be relevant for voters attempting to select a judge. The first step may be to provide voters with information about the role of the judiciary and how that differs from that of other elected officials. In addition voters might benefit from greater information about a candidates legal experience – has he or she tried a number of cases in the case of lower court judges or prepared and argued appeals in the case of appellate judges. Information about sitting judges’ demeanor and judicial temperament would also be relevant.

Strengthening the independence and impartiality of the judiciary is a challenge which at times involves constitutional as well as political issues. However, as noted above, there are steps that can be taken which will begin to address the perception that the judicial system in Ohio is broken and in need of reform.