Selecting a Supreme Court Justice for Ohio

Judges are elected in Ohio. Those seeking judicial office, whether the state supreme court or court of common pleas, must seek party endorsements and run in contested elections. While party affiliation is not displayed on the November ballot, candidates run in partisan primaries and mount serious campaigns, complete with television ads. Because judicial elections are lower profile than many other races, incumbency is an advantage, but reelection is hardly guaranteed. Case in point: Two well-regarded sitting justices – one Republican, one Democrat – were defeated this past November. A third incumbent justice was reelected.

Although elections are the primary means for selecting judges in Ohio, the Ohio Constitution provides for the appointment of judges by the Governor to fill vacancies in between elections. Such appointments occur with some regularity on lower courts, trial courts in particular, but less often on the Ohio Supreme Court. This year, however, Justice Evelyn Lundberg Stratton announced she would step down after 16 years on the High Court. Because there are two years left on Justice Stratton’s term, this gave Ohio Governor John Kasich the opportunity to name a new justice to the Ohio Supreme Court.

Given that judges are elected, and Justice Stratton’s replacement would have to run for reelection in two years, one might have expected politics do dominate the selection process. That was not the case, however, as the governor created a process to elevate merit above politics. After Justice Stratton announced her retirement, the Governor’s office invited applications for the position and named a group of Ohio attorneys, of which I was one, to assist Governor Kasich in making his selection. Our task was to evaluate the candidates and their fitness for the position. Governor’s Kasich’s instructions were clear: He wanted us to identify the best candidate, specifically the person with the experience, intellect, integrity, and temperament to make the best supreme court justice.

Thirteen individuals applied, most (but not all) sitting judges. We interviewed all thirteen to learn more about their background, their judicial philosophies, their view of the role of supreme court justice, and (if appropriate) how they felt about assuming an elective office. The pool was quite deep, and I was impressed with several candidates who would make fine state supreme court justices.

The process could have been quite political, but I was surprised at how little politics intruded. The Governor made clear he did not want political considerations to intrude on our deliberations. Beyond the recognition that state supreme court justice is an elective office, and the appointee would have to stand for reelection in two years, politics were not a concern. We did not have to worry who had the best political connections, who was owed a favor, or who could help the Governor politically. Instead, we identified the most qualified candidates and their respective strengths and weaknesses.

On December 20, Governor Kasich announced his selection: Judge Judith French of the 10th District Court of Appeals. This was a superlative choice. Judge French has served as an appellate judge for eight years. Prior to this she had served as Chief Counsel to Ohio Governor Bob Taft and Attorney General Betty Montgomery, as well as Deputy Director of Legal Affairs at the Ohio Environmental Protection Agency and an attorney in private practice. Of particular interest, Judge French argued two cases before the U.S. Supreme Court on behalf of the state, Zelman v. Harris-Simmons (the school vouchers case) and Whitman v. American Trucking Associations (a challenge to air quality standards). I expect her to make an excellent justice.