In a guest column published on March 25, Ohio Supreme Court Justice Jennifer Brunner cautioned against attacks on the judiciary because they undermine confidence in the courts. In his guest column the following week, Chairman of the Ohio Republican Party Bob Paduchik criticized Brunner being a thin-skinned politician. Can both perspectives be right?
Brunner’s guest column followed on the heels of House Republican Bill Seitz and two other House Republicans calling to impeach Chief Justice Maureen O’Connor. Secretary of State Frank LaRose stated O’Connor “violated her oath of office by making up what she wants the law to say instead of interpreting what it actually says.”
Mind you, no one alleged that O’Connor had committed a misdemeanor, the only basis in the Ohio Constitution for impeachment. No, the problem was that she exercised independent judgment and found the House and Senate maps drawn by the Republicans to be unconstitutional.
Show me an office holder disgruntled by a judicial opinion, and I’ll show you an officer holder making allegations that a judge has acted inappropriately.
Remarkably, the Seitz troika and LaRose didn’t call for the impeachment of the three Democrats on the court who also found the maps to be unconstitutional. Apparently, it’s okay for Democrats to have rejected the maps, but a Republican wasn’t supposed to do that.
Paduchik doesn’t see his criticism or those of his fellow Republicans as inappropriate partisan attacks. But without allegations that O’Connor committed a crime, what else would you call the cries for O’Connor’s impeachment?
Paduchik stated expressly that judges are politicians, and by calling for her impeachment, Republicans are implicitly saying O’Connor is a politician who doesn’t know her place.
Judges certainly act like politicians. They attend fund raisers, ask for support from law enforcement and other groups, glad hand and, occasionally talk about uncontroversial subjects, like being tough on crime. If these aren’t the actions of a politician, what is?
But we have accepted the fiction—no, we depend on it—that judges are not politicians. But for this fiction, the judicial system, which depends on its independence, collapses.
Puduchik’s column brings to light both the fiction and personal conflict that exist with a system where judges are elected. We elect judges based on whether they carry the R or D label. Try running for judge in Franklin County as a Republican.
And, somehow, we expect judges to recognize their own largely subconscious biases that come from having believed in certain party positions for so many years and then consciously holding those beliefs at some distance when deciding cases. Handling this type of conflict is asking too much of any human being, but we need to hold tight to this ideal for the system to work at all.
The issue of personal conflict isn’t so significant at the trial court level, but it certainly is at the supreme court level where state-wide decisions are made.
This isn’t the first time legislators have tried to take down a judge. In the early 1800s, the state legislature bristled when George Tod, a supreme court justice, held that a certain statute was unconstitutional and sought to impeach him. The effort failed.
About the same time, circuit court judge Calvin Pease was impeached for holding that an Ohio statue violated the U.S. Constitution. In defending himself before the Ohio Senate, Pease argued his judicial oath compelled him to make the hard decisions that he might not otherwise make because out of fear. He was acquitted.
Getting back to the question in the first paragraph, even if elected judges are politicians, if we want the judiciary to be an independent branch of government, then attacking judges for their decisions has to be off-limits.
[This post, written by Jack D’Aurora, was published as an op-ed in The Columbus Dispatch on April 13, 2022.]
