Moyer and Judicial Selection
Friday, September 12th, 2008 By David Owsiany
Gongwer Ohio News Service reports that Ohio’s Chief Justice Thomas Moyer has again argued for changing Ohio’s process for choosing judges.
Currently, the Ohio Constitution provides for the election of judges. Moyer prefers a merit selection plan. Merit selection usually involves a system where the governor (or some other appointing authority) must appoint judges from a small list of candidates selected by a commission made up of lawyers and others. The idea behind merit selection is to remove politics from the judicial selection process but oftentimes the result is that the politics occur behind closed doors. Accordingly, states with merit selection are not immune from controversy over the judicial selection process. For example, in Missouri…which has a merit selection process, one report (co-authored by former Buckeye Institute scholar Josh Hall) suggests moving toward some other process, such as the election of judges, may not improve the quality of judges. Others argue, however, the current merit selection process in Missouri is secretive and unaccountable and has been hijacked by the liberal plaintiffs’ attorneys.
According to Gongwer:
Little over two years before age limits force him off the bench, Chief Justice Thomas Moyer indicated Thursday he wants to make another stab at changing the way Ohio chooses the seven members of its Supreme Court. Mr. Moyer, who has served as chief justice since 1987, said after delivering his annual State of the Judiciary address he hopes ‘at some point’ to convene a conference on judicial selection. ‘That’s still conceptual. I don’t have any one lined up,’ he told reporters after his speech before judges from across the state gathered in Dublin for the Ohio Judicial Conference. Justices in Ohio are elected. Some of the campaigns have drawn national attention and criticism because of the millions of dollars spent on them by candidates and independent groups who support or oppose them.
Mr. Moyer favors a merit selection system in which justices would initially be appointed. They then would be subject to retention elections at which voters could end or continue their tenure. ‘I think ideally it would be extended to appeals courts, but I think that if we’re talking about a constitutional amendment - which we have to - I think we have to take a small step,’ Justice Moyer said. ‘If it’s confined to just the Supreme Court that’s a huge step for us. But I think that makes more sense … that’s where the big money is spent and that’s where the recusal issues are very difficult,’ he said. ‘Ohio’s not alone in these issues. I just think we cannot simply go along doing business as we have without having a real serious conversation about it,’ Justice Moyer said.”
As I argued more than four years ago in this Buckeye Institute commentary when Moyer floated this idea before, the problems related to Ohio’s judiciary, especially the Ohio Supreme Court’s past activism, are not the result of the process for selecting judges. I wrote:
It is not the process of selecting judges that will preserve the independence of the judiciary. It is the character of the men and women who serve on our courts that will determine the future of Ohio’s court system. They must resist the temptation to act as omnipotent policymakers and remember their role is one of interpreting the law, not making it up from the bench.”
In fact, as I argued here recently, through retirements and the subsequent election of justices committed to acting with restraint, Ohio’s highest court has improved dramatically in recent years. Despite Moyer’s pleas to the contrary, it is likely judges will continue to be elected in Ohio for the foreseeable future. And since this year’s Supreme Court races are extremely important, it is critical for Ohio voters to get up to speed on judicial candidates. Keep an eye on the Buckeye Blog for updates related to the two Supreme Court races this year.
Tags: Chief Justice Thomas Moyer, Judicial Elections, Merit Selection, Ohio Supreme Court
September 12th, 2008 at 6:21 pm
The stability and fairness of law is most fragile not when a candidate is running for his first election as a judge, but when a current judge is looking to win favor with the voters from whom he is seeking re-election. This difference is due to the fact that a sitting judge has the power to decide cases and interpret law while a mere candidate for the bench does not. Sitting judges thus face an incentive to side with popular opinion in their rulings, whether or not the popular opinion agrees with the law. Moyer’s plan fails to address the biggest flaw with elected judges by allowing voters to “end or continue their tenure” in “retention” elections, a system that would let this dangerous incentive remain unabated.