Method for Picking Justices Must Go

Method for picking justices must go

Wednesday, June 17th, 2009

Dennis J. Willard, AKRON BEACON JOURNAL, Jun 13, 2009 — COLUMBUS: Have you heard this one?

Dapper Jeopardy host Alex Trebek reads the following answer: ”The seven highest-ranking justices in the Buckeye State.”

The current champion buzzes in and confidently asks, ”What is the Ohio Supreme Court?”

Alex grimaces and states, ”Oh, I’m sorry. That’s not right. The correct response is, ‘What is the Republican Ohio Supreme Court?’ ”

Yes, all seven justices on this state’s highest court are Republican, and they got there either by raising piles of cash themselves or with assistance from their party, or in recent years with more than a little help from their third-party independent-expenditure friends.

In this era of government reform, a U.S. Supreme Court decision last week out of Washington, D.C., regarding a West Virginia case once again raises significant and enduring questions about the process Ohio uses to elect its justices.

In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court ruled 5-4 that a West Virginian judge should have recused himself from presiding over a case in which he eventually voted in favor of a fat-cat campaign contributor.

After a West Virginia jury ordered Massey to pay $50 million to the people suing the firm, the coal company’s top dog, Don Blankenship, went shopping. He spent $3 million to remove one West Virginia Supreme Court justice while helping another get elected.

Justice Brent Benjamin, the beneficiary of Blankenship’s largesse, refused to recuse himself when the Massey case came before the high court and instead cast the deciding vote in a 3-2 decision in favor of the coal company.

Brings a whole new meaning to that’s state’s slogan, ”West Virginia: Open for business.”

This was an easy one for the U.S. Supreme Court; a case a blind-folded, half-dozing ninth-grade civics student would get right. Note to self: What the heck were the four dissenting justices smoking?

Before you think, ”That’s West Virginia. It could never happen in Ohio,” stop.

Three years ago, the New York Times looked at the relationship between money and Ohio Supreme Court rulings and found ”justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs.”

The Times found justices voted in favor of contributors 70 percent of the time over a 12-year period. They rarely recused themselves — only nine times in 215 highlighted cases.

Chief Justice Thomas Moyer told the Times that ”various interests see voting patterns.”

OK, so Moyer and his six fellow justices aren’t Manchurian Candidates hypnotized by waving money in front of their faces.

They are men and women with a known philosophy and ideology when they run for office. The money doesn’t change the mind; it puts the right — sometimes left — minds on the bench.

By the way, the code for collecting business contributions is to assert that one believes in ”judicial restraint.”

Candidates, usually Democrats, seeking money from unions and personal-injury lawyers, are called ”judicial activists.”

Now, no one is suggesting, and the New York Times did not demonstrate, that a single dollar changed a single vote on the Ohio Supreme Court.

The problem with our court system is that dollars determine who sits on the court.

Friday, Chief Justice Moyer told the Beacon Journal that ”we shouldn’t be spending money as we do to elect Supreme Court justices.”

Moyer was part of a movement in the 1980s to change the makeup of the court because it had seven Democrats, including scandal-plagued Chief Justice Frank Celebrezze.

In 1986, Moyer defeated Celebrezze, and the court was balanced and unpredictable to a degree until the late 1990s, when businessmen, particularly Akron charter school magnate David Brennan and the Ohio Chamber of Commerce, started to follow a model that worked in Texas in previous years to systematically change the face of the court by outspending Democrats.

Angered by rulings that overturned a law limiting damages in personal injury suits and that the state’s funding system for schools was unconstitutional, the chamber and Brennan went to work. After the 2006 elections, Moyer was surrounded only by Republicans on the court.

Need for judicial review

Ohio Citizen Action asked Moyer on Friday to put together a study committee to examine third-party campaign funds, their influence on judicial campaigns and recusal standards.

In her letter, Catherine Turcer, with Citizen Action, quoted some staggering figures from the Brennan Center for Justice (not associated with David Brennan) and Justice at Stake in New York.

Since 2000, Ohio has aired more Supreme Court television ads than any other state.

We’re No. 1!

Third-party groups, like those supported by the Ohio Chamber of Commerce and David Brennan, spent $2.7 million in 2000; $1.6 million in 2002; more than $2 million in 2004; $1.3 million in 2006; and $1 million last year.

Even blind Lady Justice could sense the scales tilting with that kind of cash pouring into the campaigns.

To his credit, Moyer clearly takes pride in being the longest-serving chief justice in Ohio history. He believes strongly that his decisions are his own and he is bothered when 70 percent of the public surveys routinely indicate voters maintain money influences court rulings.

He notes he has twice voted against FirstEnergy in rate cases, although the utility is a contributor, and he backed Democratic Secretary of State Jennifer Brunner in two decisions during the 2008 campaign, much to the chagrin of the Ohio Republican Party.

Moyer said the justices will look at adopting a formal process this summer for recusing themselves from cases. None currently exists.

Five justices, including Moyer, stepped aside during a case involving coin dealer Thomas Noe, the convicted Republican fundraiser, although no one requested the recusal.

But justices recusing themselves from cases for perceived or real conflicts of interest doesn’t build trust in the system. The opposite is true.

When a justice stands up to leave the room for any other reason than a restroom break, everyone gets suspicious.

Recusals aren’t the answer because the problem is money determining the court’s makeup.