Speeches

Chief Justice Thomas J. Moyer
Speech to the Ohio State Bar Association (OSBA) on Campaign Reform
May 16, 2002

President Trapp,

Thank you for the invitation to participate in the annual meeting of the Ohio State Bar Association. You and the Board have enjoyed a very productive year. I express the wishes of all of the justices of the Supreme Court for your continued contribution to the administration of justice in Ohio. I pledge a continuing constructive working relationship to Steve Chappelear and all active members of the Association.

During the past two and one-half years, I have been exposed intensely to symposia, discussions, debates and journal articles concerning judicial selection and the conduct and funding of campaigns for judicial office. My message to you today is a product of all of that and my fervent belief that a truly independent judiciary is the rock upon which our democratic institutions rest.

To begin, I urge you to think of another gathering….one that took place 200 years ago.

In 1802, 35 men came together in Chillicothe to create a framework for what would soon become the state of Ohio. Writing our first constitution was a daunting task; a noble effort to carve a state from the unsettled lands of the Northwest Territory. But many years later, our first constitutional convention would come to be called "the greatest, as well as the most picturesque episode in the history of our state."

As with previous state and federal conventions, the framers of the Ohio Constitution vigorously debated issues such as slavery and suffrage….and the authority to be granted each branch of government.

In view of the sharp differences and heated debate, a historian wrote that the convention was a "theatre of intellect; the only weapons were tongues and pens, but they were directed by men who for brains and bravery are worthy of every tribute of admiration and respect that the people of Ohio can today bestow upon them."

But despite their courage and intellect, the framers of the Ohio Constitution made choices that, in hindsight, appeared doomed.

Power was concentrated in the General Assembly….as the governor had no veto authority and the legislature had complete authority to appoint appellate and trial court judges. The first constitution also did not expressly grant the courts the authority of judicial review.

The historian Daniel Ryan wrote that the authority of the legislature to appoint judges made judges "the tools of politicians." He added:

"The result of the operation of this plan was to involve the judiciary in politics, and in after years, gave rise to scandal and intrigue."

Impeachment and threats of impeachment were an accepted form of political retribution for an unpopular court decision. After one dispute the General Assembly went so far as to fire all the judges in the state….only to replace them with political supporters.

It was readily apparent that the courts were weak and dependent; that judges were looking over their shoulders before making a judicial decision.

Ohioans, as citizens in many states, called for change, and in 1851 amended the Constitution to require that all judges be elected.

Intuitively, the citizens recognized that an independent judiciary was necessary to withstand the tyranny of an autocracy, and the brute force of an unchecked majority.

As Chief Justice William Rehnquist has said…..judicial independence is "one of the crown jewels of our system of government."

Yesterday afternoon I delivered to the leadership of the Ohio General Assembly and the Governor my proposal for the creation of a legislatively created commission that would review the processes used in the 50 states for selecting judges of the highest courts and all appellate courts.

The commission would be appointed by the Governor, the Chief Justice and the leaders of the General Assembly. It would be bipartisan and would include judges, legislators and representatives selected by the three major labor organizations, representatives of the business community, organizations devoted to voter and civic education, the Chairs of the Republican and Democratic parties and the Ohio State Bar Association.

The second task of the commission would be to review the qualifications for judicial office in Ohio and other states and recommend revisions designed to enhance the minimum requirements of persons seeking any judicial office.

I continue to hope and believe that some day the citizens of Ohio will become convinced that changing the process by which we select appellate judges and, in particular, Supreme Court justices, will create more confidence in the impartiality and independence of the judiciary. But that day is not yet here. The question is, "What should be done in the interim? What changes to the current system would enhance the perception that all courts in Ohio serve their critical role in our democracy-that they reflect the fundamental principles from which courts are created?"

I propose eight actions that I believe will move us toward that goal; consider them a catalyst to serious deliberation.

Despite our inclination to believe otherwise, national surveys such as those conducted by the National Center for State Courts and the more recent Greenburg, Quinlan, Rosner research survey, confirm that at least 75% of the persons polled believe that judicial decisions are influenced by campaign contributions. The Greenburg poll revealed substantially higher levels of public cynicism in states with elected judges on questions like whether judges make decisions based "more on facts than law" or more on "politics and pressure from special interests" and whether everyone is treated equally by the courts.

The most important value of courts in a country that lives by the rule of law-trust and confidence-is being diminished by the raising and spending of money. Until we change the constitutional process by which justices are selected, we should change the practical realities of judicial campaigns.

The Greenburg poll, as others, shows widespread public support for public funding of judicial races:

To be sure, there seems to be a gap between the idea and practical application.

Attempts at funding judicial races in states such as Wisconsin and Maine have not been successful. Perhaps Ohio can once again serve as a model.

May we heed the advice of Thomas Jefferson, who wrote to a fellow Virginian, Samuel Kercheval, in a letter in 1816 that:

"Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."

In the following century, Winston Churchill observed that men (Churchill was politically astute, but seldom politically correct) frequently stumble over the truth, but too often they pick themselves up and hurry off as if nothing had happened. The truth is that circumstances have changed since 1851.

The election of judges in 2002 no longer ensures the independence…. and the perceived impartiality…. of the judiciary. Campaign fundraising has created the misperception that fairness comes at a price.

But one truth is strikingly similar to an old one….that the rule of law requires an independent judiciary, a judiciary that represents in all ways the fundamental principles of the American system of justice. The truth is that the institution must advance.

Let us not hurry off as if nothing had happened.