League of Women Voters® of Ohio / Education Fund Judicial Selection How best to select Supreme...

League of Women Voters®of Ohio / Education Fund

Judicial Judicial SelectionSelection

How best to select How best to select Supreme Court JusticesSupreme Court Justices


Judges are DifferentJudges are Different

NotNot elected to represent elected to represent constituents.constituents.

NotNot elected to enact a elected to enact a particular program.particular program.

A judge’s role is to A judge’s role is to impartially decide cases impartially decide cases based on facts and the based on facts and the law.law.


Judges are DifferentJudges are DifferentRules prohibit promises Rules prohibit promises regarding how judge regarding how judge will rule on will rule on controversial issues. controversial issues.

Such restrictions are Such restrictions are being challenged.being challenged.

If lifted, judiciary likely to If lifted, judiciary likely to be more politicized.be more politicized.


Huge sums of money Huge sums of money have been spent on have been spent on court races.court races.

1980’s campaign for seat 1980’s campaign for seat on Ohio Supreme Court - on Ohio Supreme Court - $100 thousand.$100 thousand.Today - $2 million.Today - $2 million.Advocacy groups have Advocacy groups have spent millions more.spent millions more.

Judicial Elections have Judicial Elections have been Politicizedbeen Politicized


Judicial Elections have Judicial Elections have been Politicizedbeen Politicized

(Millions)(Millions)


Source: The New Politics of Judicial Elections 2000–2009: Decade of Change Published August 2010The Brennan Center and Justice at Stake


Who are the super-spenders?Who are the super-spenders?

On the left: On the left:

Wealthy trial attorneysWealthy trial attorneys

On the right: On the right:

Chamber of Commerce, Chamber of Commerce, National Association of National Association of Manufacturers, Manufacturers, Big corporationsBig corporations

Super-SpendersSuper-Spenders


Super-SpendersSuper-Spenders

Top 5 spenders in 10 most costly Top 5 spenders in 10 most costly elections averaged $473,000.elections averaged $473,000.



Contributors expect results!Contributors expect results!

Problematic when candidate is Problematic when candidate is a judge.a judge.

Judges expected to be impartial.Judges expected to be impartial.

Large contributions threaten Large contributions threaten appearance of impartiality.appearance of impartiality.

Massey v. CapertonMassey v. Caperton

What do Contributors What do Contributors Expect?Expect?


2006 N.Y. Times interview quoted 2006 N.Y. Times interview quoted Justice Pfeifer of the Ohio Supreme Justice Pfeifer of the Ohio Supreme Court: Court:

“ “I never felt so much like a hooker down I never felt so much like a hooker down by the bus station…as I did in a judicial by the bus station…as I did in a judicial race. Everyone interested in contributing race. Everyone interested in contributing has very specific interests. They mean to has very specific interests. They mean to be buying a vote.”be buying a vote.”

What do Contributors What do Contributors Expect?Expect?


Impact of Impact of Citizens UnitedCitizens United

Citizens United v. FECCitizens United v. FEC, Supreme Court, , Supreme Court, January, 2010:January, 2010:

Corporations and unions may spend Corporations and unions may spend unlimited amounts of money to support or unlimited amounts of money to support or oppose candidates.oppose candidates.Impartiality of Judges who benefit from such Impartiality of Judges who benefit from such contributions threatened in appearance if not contributions threatened in appearance if not fact.fact.


What do People BelieveWhat do People Believe

Seven out of ten people Seven out of ten people believe that judge’s decisions believe that judge’s decisions are affected by contributions.are affected by contributions.

Nearly half of state judges Nearly half of state judges agree.agree.


Harris Interactive Poll, June 2010Harris Interactive Poll, June 2010

What do People Believe?What do People Believe?YES NO

“Campaign expenditures have a significant impact on courtroom decisions.”

71% 23%

“A judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election.”

81% 8%

“All campaign expenditures to elect judges’ should be publicly disclosed, so that voters can know who is seeking to elect each candidate.”

87%



What should we do?What should we do?

Educate voters about role of Educate voters about role of judiciary:judiciary:

Why information that is relevant Why information that is relevant to other kinds of political to other kinds of political campaigns is not relevant to campaigns is not relevant to judges.judges.


What should we do?What should we do?

Educate voters about where to get Educate voters about where to get information information

……and what information is important.and what information is important.


Where to get Where to get Information?Information?

Candidate’s Forums – ask relevant Candidate’s Forums – ask relevant questions:questions:

Judicial philosophyJudicial philosophy

EffectivenessEffectiveness

CharacterCharacter

ExperienceExperience


Where to get Where to get Information?Information?

Judicial Voter Guide on Judicial Voter Guide on Secretary of State’s website Secretary of State’s website

LWVO/EF Voter Info. LWVO/EF Voter Info. BulletinBulletin

Judicial performance evaluations Judicial performance evaluations can be useful – but understand can be useful – but understand the possible bias of the entity the possible bias of the entity making the evaluationmaking the evaluation..


Relevant CriteriaRelevant Criteria

Judicial temperament Judicial temperament for trial court judgesfor trial court judges

Legal backgroundLegal backgroundfor appellate court judgesfor appellate court judges


Judicial Scorecards can be Judicial Scorecards can be MisleadingMisleading

Judge may be rated on one or two Judge may be rated on one or two decisions of particular interest to decisions of particular interest to “scoring” organization.“scoring” organization.

May not take into account that judge May not take into account that judge is supposed to decide case based on is supposed to decide case based on facts and precedent – not personal facts and precedent – not personal political belief.political belief.


We can make Judicial Selection We can make Judicial Selection

less Political less Political Change to… Change to…

Other reforms that address problems of Other reforms that address problems of Money in Judicial Elections:Money in Judicial Elections:

Public FinancingPublic FinancingStricter Recusal RulesStricter Recusal RulesFormal Evaluation of judgesFormal Evaluation of judges


Other Methods of Selecting Other Methods of Selecting JudgesJudges

Other countries do not elect judges.Other countries do not elect judges.

Federal judiciary is not elected.Federal judiciary is not elected.

Many states do Many states do notnot elect their judges. elect their judges.Some use appointment system.Some use appointment system.

Many use appointment/retention system. Many use appointment/retention system.


Since 1973 LWVO/EF has supported appointed Since 1973 LWVO/EF has supported appointed judiciary constitutional amendment.judiciary constitutional amendment.

Unsuccessful attempt to pass a ballot initiative Unsuccessful attempt to pass a ballot initiative in 1987. in 1987.

Currently LWVO/EF working with OSBA to Currently LWVO/EF working with OSBA to educate Ohioans about the benefits of educate Ohioans about the benefits of Appointment/Retention Election System.Appointment/Retention Election System.

LWVO/EF Supports LWVO/EF Supports Appointment/Retention Appointment/Retention Election SystemElection System


Governor would appoint from list selected Governor would appoint from list selected by commission.by commission.

Commission would be diverse.Commission would be diverse.

Meetings of commission would be open.Meetings of commission would be open.

Who would do the Who would do the appointing?appointing?


Sitting justices performance to be Sitting justices performance to be evaluated by diverse appointed evaluated by diverse appointed commission.commission.Evaluations to be made public. Evaluations to be made public. Information would enable voters to Information would enable voters to make informed decision in retention make informed decision in retention election.election.

Evaluation ProcessEvaluation Process


After period in office, justices subject to After period in office, justices subject to retention election.retention election.Voters to have benefit of public Voters to have benefit of public evaluation to determine whether they evaluation to determine whether they should be retained.should be retained.If voters do not retain sitting justice, If voters do not retain sitting justice, commission nominates replacement.commission nominates replacement.

Retention ElectionRetention Election


Other Measures supported Other Measures supported by LWVOby LWVO

Public FinancingPublic FinancingTransparency & Reporting of ContributionsTransparency & Reporting of ContributionsStricter recusal standardsStricter recusal standardsBi-Partisan or nonpartisan commissionBi-Partisan or nonpartisan commissionJudicial Performance EvaluationJudicial Performance Evaluation


Public FinancingPublic Financing

Reduces influence of large Reduces influence of large contributors.contributors.

Focuses campaigns on candidates’ Focuses campaigns on candidates’ qualifications.qualifications.

May encourage broader pool of May encourage broader pool of candidates.candidates.

Has been successfully pursued in Has been successfully pursued in North Carolina.North Carolina.


Transparency & Timely Transparency & Timely Reporting of ContributionsReporting of Contributions

Public has “right to know” who Public has “right to know” who is contributing to a judge’s is contributing to a judge’s campaign.campaign.Same principles as applied to Same principles as applied to other elective offices.other elective offices.

Following Following Citizens UnitedCitizens United decision, information becomes decision, information becomes even more important.even more important.


Stricter Recusal Stricter Recusal StandardsStandards““Recusal” refers to the Recusal” refers to the

circumstance where a judge circumstance where a judge declines to hear a case because declines to hear a case because impartiality may be questionedimpartiality may be questioned

Importance highlighted by Supreme Importance highlighted by Supreme Court decision in Court decision in Massey v. Massey v. Caperton. Caperton.

Argument that not needed because Argument that not needed because of limits on individual contributions.of limits on individual contributions.


Bi-Partisan or Nonpartisan Bi-Partisan or Nonpartisan CommissionCommission

Without constitutional amendment, Without constitutional amendment, Governor Governor Strickland has implemented a Strickland has implemented a bi-partisan bi-partisan commissioncommission to make recommendations to to make recommendations to governor about candidates for judicial governor about candidates for judicial vacancies.vacancies.

Continuance of commission subject to decision Continuance of commission subject to decision of subsequent governors.of subsequent governors.


Judicial Performance Judicial Performance EvaluationEvaluation

Provides voters with objective, Provides voters with objective, relevant information to base relevant information to base decision on selecting judges.decision on selecting judges.

Even without adopting retention Even without adopting retention election system, information would be election system, information would be valuable if provided by diverse valuable if provided by diverse commissioncommission..


Role of Judiciary/SeparationRole of Judiciary/Separationof Powersof Powers

Independent and impartial judiciary has Independent and impartial judiciary has critical role to play in maintaining the critical role to play in maintaining the separation of powers.separation of powers.

Judiciary prevents abuse of power Judiciary prevents abuse of power by other branches.by other branches.

If judges are elected to carry out a political If judges are elected to carry out a political agenda, they cease to perform this function agenda, they cease to perform this function and impartiality is threatened.and impartiality is threatened.


What can Local Leagues What can Local Leagues do?do?Hold candidate forums for Hold candidate forums for

judges.judges.

Promote Secretary of State’s Promote Secretary of State’s Voter Guide on the Judiciary.Voter Guide on the Judiciary.

Educate voters about unique Educate voters about unique role of judiciary.role of judiciary.

Educate voters about reform Educate voters about reform measures.measures.


Judicial SelectionJudicial Selection

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