A Judge as a Conservative “Backstop”?

State Supreme Court elections have not only become more expensive in recent years—they are now more politically charged and partisan. Statements by a sitting Ohio justice on the campaign trail reflect this trend, and drew national headlines in what media reports described as the hottest race of Ohio’s political cycle. 1

“25 Years 15” sponsored by the Ohio Republican Party. Copyright 2014 Kantar Media/CMAG.

Commentary to the Ohio Code of Judicial Conduct advises that “Judicial candidates have a special obligation to ensure the judicial system is viewed as fair, impartial and free from partisanship.” 2 Yet while campaigning in a contested election to keep her seat, sitting Ohio Supreme Court Justice Judith French took the microphone at a political rally and told her supporters:

I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: the Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So forget all those other votes if you don’t keep the Ohio Supreme Court conservative. 3

Just five months earlier, French’s opponent, Judge John O’Donnell, stated that the Ohio Supreme Court has “one Democrat and six Republicans. Even people who are heavily partisan should recognize that a court that is that far out of balance is not good in the overall scheme of things.” 4

French ultimately won with 56 percent of the vote, but questions about judicial impartiality have lingered since her election. In 2015, the Ohio Civil Service Employees Association asked French to recuse herself from a constitutional challenge to Republican-supported legislation that had been pending before the court during her campaign. 5 The case involved the sale of one of Ohio’s prisons and the transfer of another prison to a private company, resulting in a substantial loss of union jobs. French declined to recuse herself, defending her past remarks as statements of her “philosophical view” rather than partisan allegiances. 6 The president of the union expressed concern, stating, “There should be a better process for evaluating the need for a recusal, rather than the person doing it herself, as in this case … She never denied making the statements reported in the press.” 7 At the time this report went to press, the case was still pending.

Notes:

  1. Henry J. Gomez, The Hottest Race as Election Day Nears? The Battle for a Supreme Court Seat: Ohio Politics Roundup, Cleveland.com (Oct. 31, 2014, 9:40 AM), http://www.cleveland.com/open/index.ssf/2014/10/the_hottest_race_as_election_d.html.
  2. Ohio Code of Judicial Conduct R. 4.1 (2009), available at http://www.supremecourt.ohio.gov/LegalResources/Rules/conduct/judcond0309.pdf.
  3. Randy Ludlow, Justice French Defends ‘Backstop’ Comment at GOP Rally, The Columbus Dispatch (Oct. 28th, 2014), http://www.dispatch.com/content/stories/local/2014/10/27/justice-french-defends-comments.html.
  4. Kyle Cassidy, Supreme Court of Ohio: O’Donnell Seeks to Bring Balance to Court, The Carroll News (Oct. 30, 2014), http://www.jcunews.com/2014/10/30/supreme-court-of-ohio-odonnell-seeks-to-bring-balance-to-court/.
  5. Letter from James E. Melle, Attorney, to Sandra H. Grosko, Clerk Ohio Supreme Court (Jan. 27, 2015),http://www.sconet.state.oh.us/pdf_viewer/pdf_viewer.aspx?pdf=760867.pdf.
  6. See Alan Johnson, Justice French Won’t Remove Herself from Case Despite Bias Allegations, The Columbus Dispatch (Feb. 5, 2015), http://www.dispatch.com/content/stories/local/2015/02/04/justice-french-refuses-to-recuse-herself.html.
  7. Id.