The Gentle People By Nadya Labi
The Last Lord Chancellor? By William Goodhart
Man and the Machines By Benjamin Soskis
Suspect Memories By Jascha Hoffman
Common Denominator By Nicholas Thompson
Money Talks By Andrew Goldstein
In a race for the Ohio Supreme Court, one candidate spoke freely about his views and the other filled his war chest. Guess who won.
ASIDE FROM THEIR IRISH HERITAGE, the two men vying in November for a seat on the Ohio Supreme Court had little in common. William O'Neill, the 57-year-old Democratic challenger, has the neck of a linebacker and the dyspeptic style of Howard Dean. The 58-year-old Republican incumbent, Terrence O'Donnell, pairs a dry demeanor with a perfectly dimpled necktie. With five days to go before the election, the two met for a televised debate (public access cable, but still) at the City Club in downtown Cleveland. It took only a few minutes for an audience member to ask about the election's most contested issuetort reformand for O'Neill to denounce the state's legislators for limiting pain and suffering awards, despite a 1999 court ruling that struck down a similar law.
"They are out of control. They are in open defiance of the Ohio Supreme Court," he said of the lawmakers. "They need to do their job, which would be to define the medical malpractice crisis and find a real solution that gives real relief to the doctors." Half the audience applauded; the rest sat silent. It was O'Donnell's turn. But instead of addressing the merits of O'Neill's stance, the incumbent criticized his opponent for having a stance at all. "The proper decorum for a member of the Ohio Supreme Court is not to have an advocacy position, especially with respect to the legislature," O'Donnell said.
The feint didn't work the way he'd hoped, however. A member of the audience piped up to suggest that O'Donnell's position as pro-tort reform was clear enough, despite his demurral. "Don't you ever wake up in the morning and wonder, 'Why are all these insurance companies giving me all this money?' " the audience member quipped.
All that money amounts to $1.4 million donated to O'Donnell's campaign, plus an additional $2 million spent on his behalf by outside groups like the Ohio Chamber of Commerce. A political action arm of the Ohio State Medical Association, which backs tort reform, ran TV ads in support of O'Donnell. Some physicians lobbied their patients on his behalf, wearing buttons that read, "Ask Me How You Can Help Save Medicine."
O'Neill, an appeals court judge and registered nurse who volunteers in a Cleveland hospital, said that some of his colleagues in the emergency room started referring to him as "the enemy within." But he couldn't, or wouldn't, fight money with money: His campaign raised only $75,000, limiting contributions to a maximum of $10 a person. The Democrat's weapon was the one he displayed at the Cleveland debatespeech. Two years ago, the United States Supreme Court struck down a Minnesota code that restricted what candidates for the judiciary could say on the campaign trail. In late September, O'Neill convinced a federal judge to suspend enforcement of Ohio's speech restrictions, opening the door to his fiery stance on tort reform.
The Supreme Court's 2002 ruling in Republican Party v. White was met with groans from the legal establishment on both sides of the political aisle. The court had "opened a Pandora's Box," said Robert Hirshon, a former president of the American Bar Association, arguing that speech restrictions were the only thing preventing judicial races from becoming complete free-for-alls. The flaw in that analysis, however, begins with the war chests amassed by candidates like O'Donnell. The Ohio justice didn't need to say a word to win the tort reformers' backing.
When judges refrain from speaking out about controversial issues, the void tends to be filled not by voters who studiously examine candidates' résumés, but by massive ad campaigns paid for by interest groups. To be sure, eliminating judicial speech codes creates a serious problem. How can a judge be neutral on the bench when he has signaled his support for one side of an issue during his campaign? Yet lifting the restrictions helps put judicial elections in the hands of the people doing the electing. As long as judges are chosen by voters, as they are in 39 states, it's hard to argue with White's logic. As O'Neill put it, "If judges can't give voters real information about real issues, then the candidate with the most money will always win."
THAT'S A DANGER ESPECIALLY IN STATES LIKE OHIO, where the business community has targeted the courts as too plaintiff-friendly. In most states, the supreme court is composed of seven or nine justices, and swinging one or two seats from liberal to conservative, or vice versa, can determine how certain cases come out, with huge economic consequences. This fall, the three Republican candidates for Ohio's high court and the groups supporting them spent $9 million, more than half of which was donated to safeguard pro-business legislation like the newly enacted damages caps. O'Neill's two Democratic compatriots, meanwhile, together spent not quite $1 million, most of it donated by personal injury lawyers.
Across the country, big-money campaigns like Ohio's are mounting. Four years ago, judicial candidates ran TV ads in just four states; this year the number was 15. In West Virginia, the chief executive of a coal company pumped $1.7 million into a successful effort to unseat a justice who had frequently sided with workers in compensation cases. In an Illinois race, opposing candidates raised $5 million to run ads depicting each other as coddlers of sexual predators and child-killers. In 10 races across the country, spending broke the $1 million mark.
Ohio had its first nasty judicial campaign four years ago, when Terrence O'Donnell made an initial run at the state supreme court. An affiliate of the Ohio Chamber of Commerce called Citizens for a Strong Ohio, which has refused to reveal its funding sources, spent more than $1 million on ads that accused O'Donnell's incumbent opponent, Alice Robie Resnick, of selling her votes on the bench. O'Donnell refused to criticize the ads, arguing implausibly that Ohio's speech code restricted him from doing so. In the end, the ads backfired and brought O'Donnell down with thema rare instance in which the candidate with the most money lost. He had to wait three years before being appointed by Governor Bob Taft, a Republican, to fill a vacancy created when another justice stepped down midterm.
Would-be reformers worry that loosening speech restrictions for candidates will allow special-interest groups to pressure judges into taking positions that will box them in on the bench. The judiciary "will become less independent and more beholden to individuals," Hirshon said. "Ultimately, candidates for judicial office will run on abortion planks, tort reform planks, consumer planks, business planks." One of the lawyers who represented the White petitioner said that his goal was to flush out pro-choice judges and candidates. "It was about abortion," William Mohrman said of the case shortly after his Supreme Court victory. "The only place liberals are getting heard is with these elitist judges. After this case, it's going to be tough for a judge who is pro-gay rights or pro-criminal rights or pro-abortion."
So far, however, White hasn't lived up to its billing as the destroyer of judicial speech codes. The Minnesota rule that the court struck down prevented candidates from "announcing" their views on legal and political disputes. Most states, including Ohio, have in place more narrow bans that prohibit candidates from "committing or appearing to commit" to one side of a contested issue. The line between an announcement and a commitment is a fine one, but states have relied on this distinction to hold onto their bans. For the time being, candidates like O'Neill who want to speak their minds have to win their own court victories in order to have that liberty.
Unlike his opponent, on the campaign trail O'Donnell largely stuck to detailing his résumé. He liked to tell audiences about the three clerkships that began his legal career, his extensive advocacy for the mentally retarded, and his 23-plus years of judicial experienceon the common pleas court, the court of appeals, and now the supreme court. Voters, he stressed, should choose judges based strictly on "the character, the integrity, the background, and the experience that the candidate brings to office."
When asked his views on issues like tort reform, O'Donnell said only that he believes strongly in "the separation of powers concept, that the legislature is the lawmaking body and the judiciary is the interpretive body." Still, in response to O'Neill's criticism of his prodigious fundraising, O'Donnell argued that in a state with 11 million voters, the money was necessary "for a serious candidate to deliver a serious message to the people of Ohio." At the Cleveland debate, O'Neill jumped on this. "What is the message?" he asked. "I have yet to see one serious message in a supreme court ad bought with $12 million, other than 'I'm a good fundraiser.' "
O'NEILL IS A DECORATED VIETNAM VETERAN, and on the campaign trail he frequently described his service and mentioned that he was honored to be on the same ticket as "a true American hero, Silver Star-winner John Kerry." Eager to fire up a crowd, O'Neill sometimes shouted out a red-meat line: "And one thing is certain: Senator Kerry and I don't need any military advice from any draft-dodging oil merchant like Dick Cheney."
This was O'Neill's third judicial campaign. While he griped about schlepping across the state in his used Cadillac Sevillehe put 60,000 miles on the car in 10 monthshe loves that Ohio elects its judges. "We give judges awesome power, and people therefore have an absolute right to decide who we put into this job," he told me, while eating a slice of apple pie in a Bob Evans restaurant on the outskirts of Cleveland between campaign stops.
Ohio switched from appointing judges to electing them in 1851. Scholars attribute the change to President Andrew Jackson's democracy movement and to the anger among lawyers over corrupt appointments. But while Ohio voters have shown no interest in returning to an appointment systemthey resoundingly rejected such an initiative in 1987the indignity of the past two judicial election cycles has many in the state clamoring for a change. O'Neill cast himself as the reformers' man. He told audiences he was running "to change the way we elect judges in Ohio," and he used the slogan, "Money and Judges Don't Mix."
O'Neill admits that he limited himself to contributions of $10 per donor (the law permits up to $2,500), in part to capture people's attention. But he also insists he'd be uncomfortable accepting large amounts from lawyers who would later appear before him in court. (Roy Schotland, a judicial elections scholar at Georgetown University Law Center, belittles that concern. "Do you really think somebody raising $500,000 can be bought by a $200 donation?" he asks.)
In order to get out his message with a tiny fraction of the money of his opponent, O'Neill chose a provocative campaign mantra. "We have to stop selling seats on the Ohio Supreme Court like you sell a seat on the New York Stock Exchange," he told his audiences. He also said that he was running as a Democrat, even though the election was supposed to be nonpartisan. A Republican state legislator filed a disciplinary complaint, and the Ohio State Bar Association reprimanded O'Neill for "falsely" impugning the integrity of the judiciary. That was the opening the candidate needed to go to federal court, where he challenged the constitutionality of the state's speech code, which included a prohibition against making commitments on issues. U.S. District Judge Ann Aldrich agreed and suspended enforcement of the speech restrictions until after the election.
Liberated, O'Neill decided to go after what he sees as the Ohio Supreme Court's biggest failure: a 2003 decision in which the court, backtracking from several prior rulings, said it would no longer hear challenges to the state's method for funding public schools. The case began in 1991, when 275 of Ohio's poorest school districts sued the state, arguing that its reliance on local property taxes to fund education violated the Ohio constitution. Surrounded by hundreds of teachers at an October dinner hosted by the Ohio Education Association, O'Neill laid into the recent ruling. "The Ohio Supreme Court not once, not twice, not three times, but four times has declared the way we fund education in Ohio unconstitutional," he said, his voice rising. "And then, much like Pontius Pilate in the Bible, they washed their hands of the entire matter and walked away. A court that does not enforce its own orders has abandoned its role as the third independent branch of government." The teachers loved him.
Leaving the dinner early, O'Neill hopped back into his Seville and drove 100 miles west along Lake Erie to Toledo, where most of the state's Democrats were gathering to honor Congresswoman Marcy Kaptur. En route, I asked him if he was concerned that conservative groups were using the White decision to pressure judicial candidates into taking public positions on issues like school prayer and same-sex marriage. James Bopp, Jr., one of the lawyers in White, challenged speech codes this year in Alaska, Indiana, Kentucky, and North Dakota, with the support of the National Right to Life Committee. The goal is to free judicial candidates to respond to surveys that ask questions like, "Do you agree with the U.S. Supreme Court's decision in Bowers v. Hardwick, which held that antisodomy laws are constitutional?" O'Neill was undeterred. "We can't operate under a cloak of secrecy," he said. "They want litmus tests? Let's have them. We elect judges who believe everybody who gets a speeding ticket should go to jail. Maybe the entire black population of Cleveland doesn't need to spend time in prison."
If we can't discuss issues like these, asks O'Neill, then why have judicial elections at all? It's a question about the role judges should play in American democracy. Judicial reform advocates argue that judges are supposed to be neutral arbiters with no constituency but the law. The only criteria for selection, they say, should be a judge's ability to apply that law fairly and impartially. "It's difficult to understand how a judge can be a neutral arbiter of a dispute if he came down on one side during the campaign," says Deborah Goldberg, director of the Democracy Program at the Brennan Center for Justice, a nonpartisan group. "There needs to be a focus not just on the rights of judges, but also on the constitutional rights of those who come before the court."
But free speech advocates point out that state supreme court justices don't just interpret statutes. They also have "immense power to shape the States' constitutions," as five supreme court justices noted in White. Whether a ban on same-sex marriage violates the right of gay couples to equal protection under the law, for example, is a question that turns on how the sitting justices interpret the state's constitution. These core constitutional issuesabortion, school prayer, whether courts should decide how public schools should be fundedare the ones that judges are most likely to be asked about when they campaign.
O'Neill insisted that he could be impartial on the bench despite his big mouth. He framed the views he expressed during the campaign in general terms, and he was careful not to say how he would vote in a future case. But O'Neill was walking a fine line. At the end of his rant about school funding before the Ohio Education Association, he told the assembled teachers that a vote for him would send a "simple and direct message to the out-of-control Ohio General Assembly: When you come to Columbus in January, bring your toothbrushes, because you will be staying until you comply with the laws of the State of Ohio."
That's a pretty clear indication of how O'Neill would vote if he were to hear a school funding case. So wouldn't he have to sit out the case if he won the election? "Every judge in Ohio who has ever ruled that the way we fund schools is unconstitutional has prejudged the case, too," O'Neill said, to explain why he thinks the answer is no. "And haven't the current justices already indicated how they'd vote?" That's the conundrum of speech bans: Since sitting judges take stands all the time in their opinions, what justifies muzzling their challengers just because they aren't yet wearing black robes?
In the end, however, O'Neill discovered that no amount of straight talk can compete with hard cash. All three of the Democratic candidates for the Ohio Supreme Court lost handily, outspent by more than 9 to 1. O'Donnell trounced O'Neill with 60 percent of the vote. The Republican victories mean that the seven-member court, which five years ago leaned left with two Democrats and two liberal Republicans, now has six Republicans and just one Democrat. It isn't hard to guess how the new justices will rule on tort reform and school funding.