Editorial: Ohio’s Supreme Court elections are critical, even if they are partisan

What you need to know about judicial selective methods: what is the ideal method?

In July 2021, Ohio Gov. Mike DeWine signed legislation making it so that party affiliations for higher court judicial candidates would be shown on the ballot in general elections. Prior to this bill, Ohio had partisan primaries, but nonpartisan general elections. In this upcoming general election on Nov. 8, there are multiple seats open for the judicial branch in Ohio and Cuyahoga County. While not every single judicial candidate has their political affiliation listed alongside their name—the Court of Common Pleas is still nonpartisan—most candidates are now listed with a political party. 

Some of the most significant judicial seats up for grabs are on the Ohio Supreme Court—two justice positions and the chief justice position. Since current Chief Justice Maureen O’Connor is stepping down, two current justices are running to take her place. The two chief justice candidates are Justice Jennifer Brunner, who is listed as a Democrat, and Justice Sharon L. Kennedy, who is listed as a Republican. 

However, before we delve into the Ohio candidates, it’s important to understand the different types of judicial selection methods in the United States. There are five methods that states use: partisan elections, nonpartisan elections, gubernatorial appointment, legislative appointment and merit selection. Both partisan and nonpartisan elections involve the people of the state electing a judge through voting; however, a partisan election means that a judge will be listed on a ballot with their political party affiliation. A nonpartisan election, on the other hand, is when a judge is listed on an election ballot with no political party association. A gubernatorial appointment is an appointment by the governor, and a legislative appointment is an appointment by the state legislature, both usually after recommendation. The fifth way an individual can become a judge is through merit selection. This is a process involving lawyers and non-lawyers who evaluate candidates and shortlist names to send to the governor for appointment; after a brief period, the judge must run in a retention election. At the federal level, there is only one method: selection by the president and confirmation by the U.S. Senate, established in the U.S. Constitution.

Each type of selection method has its own benefits and drawbacks, but the ideal and most objective method of selection is merit selection. For elective methods, judicial candidates can spend up to millions of dollars on elections. As a result, political action committees heavily contribute to judges’ campaigns, especially if they are partisan. Furthermore, candidates of color typically raise less money than their white counterparts in state supreme court elections. When states have partisan elections, the impact of political pressures are clearly illustrated. Both the Louisiana and Texas Supreme Courts are accused of and are being investigated for succumbing to political and financial pressures.

The efficacy of non-elective methods, however, can highly depend on the partisan interests of the legislature and the judicial candidate. However, merit selections are technically intended to be free of this partisanship and of political motivations, instead having the goal of obtaining qualified state judges free from political bias. The benefit of the method is that the process is generally fairer when run by committee—these candidates are generally qualified—with the governor having to select a candidate from the shortlist. However, political bias can still play a role overall. For example, special interest groups have discovered that judicial retention elections are vehicles by which offending judges can be unseated and state judicial policymaking can be influenced. While retention elections aren’t free from similar problems of elective methods, the merit selection process is most likely to be unbiased and nonpartisan in its initial selection process. But, having an election component might balance out the democratic side of the process, with it granting constituents the opportunity to elect judges in their community that they feel best represent them through their judicial philosophies after they have spent time on the bench.

While merit selection is the most ideal method, that isn’t our current reality. If we are going to have general elections for the judiciary, nonpartisan elections are the most ideal. Party affiliations cause the public to discount candidates’ records in favor of simple categorization. Even though impartiality can be questioned in any election, partisan elections give even more reason for examination. With partisan elections in Ohio, the purpose of the judiciary is undermined.

This 2022 general election will determine how Ohio’s judiciary will operate in the coming years. It’s important to vote not just for your local and state representatives, but to research and vote for your judges and justices. Especially in our age of polarized politics and gridlocked legislatures, it is the judiciary that will decide on the issues that affect our everyday lives as college students in Ohio.