"I believe that the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by the state or federal legislatures, is probably the most significant single contribution the United States has made to the art of government.” – Chief Justice William Rehnquist, U.S. Supreme Court

Judicial accountability is, of course, imperative. Voters should hold judges accountable primarily for their knowledge of the law, their impartiality and their integrity—not whether their decisions support or oppose popular (or political) will. When discussing judicial accountability, there are a few issues that must be considered:

  • The rule of law versus popular opinion;
  • The complexities of potential conflicts of interest; and
  • Holding judges accountable.

The Rule of Law Versus Popular Opinion

Consider this example: If the majority of residents in a neighborhood petition their elected representatives to ban certain house colors from the neighborhood, chances are the representatives will do as the majority wishes and ban those colors. The officials are representing and reflecting the views of their constituents.

However, if there is no such law and one neighbor paints her house blue against the wishes of her neighbors, and the neighbors go to court for an injunction, what does the court decide?

The court must decide in favor of the blue homeowner, no matter how powerful, loud or large the majority. It is the rule of law that governs in a democracy, not popular opinion.

Conflicts of Interest

The following example shows how potential conflicts of interest can become a complex issue:

A large utility company gets approval from the Utilities Commission to raise its rates despite evidence that the raise may be unwarranted. A consumers’ group announces that it intends to sue. A short while later, the CEO of the utility company makes a financial contribution to a partisan “527” group, a tax-exempt group created primarily to influence the nomination, election, appointment or defeat of candidates for public office. The donation helps fund an ad attacking one of the two competing judicial candidates.

Will there be a conflict of interest if the winning candidate hears the utilities case?

Conflicts of interest happen when personal interests conflict with professional duties. Concerns about conflicts of interest are complex. In this example, no matter which candidate wins, should the winner be allowed to hear the case when it comes to court? Who should decide whether the judge has a conflict of interest? Will the winning judicial candidate necessarily know of the CEO’s contribution to the 527 group? Does it make a difference if the winning judicial candidate was—or was not—the target of the attack ad?

Holding Judges Accountable

In Ohio, all judges are elected except federal judges. The purpose of electing state judges is to get people involved in the judicial process, provide voters with meaningful choices and ensure that judges are accountable. Judges can be voted out of office if citizens feel that they do not decide cases fairly.

Judges can also be held accountable in a number of other ways. First is the appeals process, whereby judicial decisions can be reviewed and remedied by higher courts. There are also the options of legislative review and constitutional amendment.

Judges can be held accountable if they do not comply with the rules and canons that outline their responsibilities and requirements. The Code of Judicial Conduct embodies the canons specific to judges and judicial candidates, from acting with integrity (Canon 1) to complying with rules for judicial campaigns and limitations on fundraising (Canon 7).

Government of the Judiciary of Ohio delineates rules for both attorneys and judges, including those that apply to professional responsibilities and ethics, disciplinary procedures and mandatory continuing legal education.

Disciplinary procedures are also available in response to allegations of judicial misconduct. Judges in Ohio are subject to disciplinary procedures through the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline, which determines whether any discipline (including suspension, retirement or removal) is justified. In addition, an Ohio judge may be removed by impeachment, which requires a concurrent resolution of two-thirds of the members of both houses of the General Assembly.