The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
All three Republican candidates for the Ohio Supreme Court won their races on election day this year. Justice Patrick DeWine and Patrick Fischer each won reelection and Justice Sharon Kennedy defeated Justice Jennifer Brunner in the race to replace outgoing Chief Justice Maureen O'Connor. None of the races was particularly close; all three races were decided by double digit margins.
Once Justice Kennedy assumes her role as the new Chief Justice, there will be a vacancy on the Court for Ohio Governor Mike DeWine to fill. Ohio Supreme Court justices serve six year terms, but when there is a mid-term vacancy–as is occurring here with Justice Kennedy's elevation–the governor appoints a replacement to serve the remainder of the term.
Governor DeWine's choice is particularly important because it will determine the orientation of the Court. There are seven seats on the Ohio Supreme Court. Three are held by conservatives (Kennedy, Fischer, and DeWine). And three are held by liberals (Brunner, Michael Donnelly, and Melody Stewart). Thus the seventh justice will control the Court's balance. Chief Justice O'Connor, while once conservative, had become something of a "swing" justice, occasionally joining with the Court's liberal wing on major issues. This has frustrated many conservatives who had hoped a Republican majority on the Court would mean more consistent outcomes.
The Governor appears to understand the importance of this nominaton. As a spokesman told the Vindicator:
"There are a lot of important cases coming up, and it's important to (DeWine) it's someone who respects the law. The governor wants judges who tend to try not to legislate from the bench, but interpret the law as written. Those are things he's opined on with the U.S. Supreme Court so certainly that would not be a surprise if those are the things he emphasizes there."
Lobbying for a potential Supreme Court pick has already begun. Political insiders are pushing their favorite potential picks, and such lobbying is often driven more by political allegiances than any concern for judicial philosophy or temperament. A pick like this does create the opportunity to reward political allies, but basing a Supreme Court appointment on such considerations would be a wasted opportunity.
One way to ensure that a Supreme Court appointment is made for the right reasons, and that a pick reflects the Governor's preferred judicial philosophy, is to rely upon a committee or council to review potential nominees. This is the approach former Governor John Kasich used to fill a vacancy created by Justice Evelyn Lyndberg Stratton's retirement in 2012. I was honored to serve on that committee, and I believe the process worked well, resulting in the appointment of Justice Judi French.
As I explained in a blog post at the time, part of what made the process work was that Governor Kasich made clear what he wanted—a highly qualified jurist with a conservative judicial philosophy matching that of the governor (and who would be a viable candidate for re-election)—and let us evaluate the applicants on his behalf, free of political influence or meddling. It did not matter whether one of the applicants had better political connnections or relationships than the others. We were told to identify the best nominee given the governor's criteria, and that is what we did, through a process of carefully reviewing application materials, examining their records, and interviewing potential nominees.
The approach utilized by Governor Kasich is not the only way to make this sort of choice, but I think it highlights that if a Governor cares about the direction of the Court (as Governor DeWine says he does), then the Governor needs to be sure that any Court pick is based upon the judicial philosophy, temperament, intellect, and other qualifications of potential appointees, and not whether a particular candidate has the right political allies or superficial pedigree.
Opportunities like this do not come around very often. Mid-term vacancies on the Court are relatively rare, and picks that control the balance of the Court are rarer still. How Governor DeWine uses this oportunity could have a profound effect on Ohio law. There are quite a few big issues heading their way to the Ohio Supreme Court on which this pick will likely make the difference. Here's hoping the Governor understands the gravity of his choice.