Another tilt at judicial reform
Gallagher's a good political name in Cuyahoga County. I can't remember when there haven't been at least two or three judges by that name. A full quarter of the twelve judges on the appellate court are named Gallagher. There's one on the general division of the common pleas bench, and one in the probate division. Like I said, it's a good political name.
Michael Gallagher realized that, too, back in 1990. He'd had a nondescript career as an attorney -- I'd had a case with him once, and frankly, I wouldn't let him wash my car -- but he'd put in the six years as a lawyer that is the sole requirement to run for judge, so he got the necessary 100 signatures on a nominating petition. The $50 he spent to file it was the only expenditure of his campaign. He did no campaigning. He won. His judicial career lasted only five years, when he was convicted of selling cocaine to an undercover DEA agent. So you'd figure that Michael Gallagher would be the poster boy for merit selection of judges in Ohio, wouldn't you?You'd be wrong. When Ohio Supreme Court Chief Justice Maureen O'Connor unveiled her proposals for reform of the judiciary the other day, conspicuous by its absence was any suggestion that judges should be appointed, rather than elected.
O'Connor apparently decided that she didn't want to beat a dead horse, or get beaten by one. Merit selection -- appointing, rather than electing, judges -- has an unhappy history in Ohio. In 1949, Missouri adopted what became known as the Missouri Plan: judges were appointed, then subject to elections to determine whether they should be retained. It could have become known as the Ohio Plan, because that precise method was submitted to the voters here in 1938, only to lose by a 25-point margin. The proposal was floated again in 1987, and got similarly thrashed, losing in 80 of Ohio's 88 counties. Efforts to revive the idea in 2002, 2003, and 2009 never made it to the ballot, and O'Connor pointedly noted that polls show over 80% of Ohio voters remain opposed to the idea.
O'Connor instead focuses on increasing voter participation in judicial races by various methods, including moving the judicial races up on the ballot, having them in odd-numbered years, and increasing methods of providing voters with information about judges. What that would accomplish is open to conjecture. To be sure, one of the reasons a lot of people don't vote for judges is because they don't have information on them, but the problem there is that, unlike other candidates, it's hard to acquire voter-relevant information. A voter can choose a congressional candidate on the basis of the candidate's views on a wide range of political issues. What are the criteria for voting for a judge: how well she controls her docket?
But this sidesteps two questions. Eighty-seven percent of state judges in America are elected. This happens nowhere else in the world; outside of cantons in Switzerland, and the Japanese Supreme Court (and the elections there are a mere formality), judges everywhere else are appointed. True, in many of those countries they don't have elections for anybody, but the European countries all look at judges as completely outside the realm of politics. As technicians, really; I ran across this New York Times article in which a French judge talks about the arduous training he had to undergo to become one, beginning with a four-day written exam which barely 5% of those taking the test pass. And for that matter, it's not just other countries which appoint judges. We do, too, on the Federal level. The decision to have state judges elected amounts to a stunning rejection of the Founding Fathers' view of the need for an independent judiciary.
The second question is really the key one: what effect does electing judges, rather than appointing them, have on the quality of the judiciary? From my perspective, which spans close to four decades now (and I feel like I should be pausing to drink a glass of Metamucil as I write that), I'm not sure it makes that much difference. It's certainly a lot better than it was. When I began practicing, there were a number of judges who'd basically been given the job as a reward for being a reliable party hack. You rarely see that any more. And voters seem to be wising up to the name game. A Michael Gallagher probably couldn't get elected nowadays. This past election, two very good judges were retained by the voters, despite running against candidates with more reliably "political" names. (That's not to denigrate the candidates who were running against them, both of which would've made good judges, too.)
But still... One of the interesting aspects of all this is that while polls show the public insists on electing judges, those same polls show the public to be wary of judges making decisions on the basis of politics, not justice. O'Connor admitted as much herself; one of her proposals is to do away with partisan primary elections because they "fuel the perception that judges are susceptible to political influence." That wariness is not undeserved. As I talked about five years ago when the Supreme Court upheld tort reform statutes virtually identical to the ones they'd twice struck down a few years before, the different result came in the wake of changes in the composition of the court, changes which were partly the result of major campaign contributions by health and insurance industries, the main beneficiaries of tort reform. And let's not forget the two Cuyahoga County Common Pleas judges who recently went off to Federal prison for their participation in the county corruption scandal, participation that was solely prompted by their desire to curry influence with political powerbrokers.
Some have suggested that the answer is to greatly reduce the contributions to judicial campaigns. Whether that's possible at all is a dicey proposition, given the US Supreme Court's views that contributions are protected speech under the First Amendment. Whether it's plausible is yet another matter. The basic problem is that if you're going to have judges selected through the political process, as the public obviously wants, it's very hard to take politics out of that.