Judicial Selection and Political Culture

• Author: Jonathan L. Entin
• Position: Professor of Law and Political Science, Case Western Reserve University.
• Pages: 523-558

Page 523

Jonathan L. Entin : My father's final illness prevented me from delivering this paper in person at the Capital University Law School symposium on judicial selection in January 2001. My deepest gratitude goes to the editors who have permitted me to participate vicariously in the proceedings.

The 2000 election campaign for the seat held by Ohio Supreme Court Justice Alice Robie Resnick was by far the most contentious in the Buckeye State's history. Justice Resnick, part of the four-member majority on a court that had decided a number of high-stakes cases, was targeted for defeat by business groups, notably the state and national Chambers of Commerce.¹Millions of dollars poured into the campaign, much of it devoted to television advertisements accusing Justice Resnick of selling her judicial vote to trial lawyers and labor unions.² The tone of the campaign was so vitriolic that Chief Justice Thomas J. Moyer, who regularly dissented from the controversial rulings, urged disclosure of advertising sponsors in the future and the adoption of an appointive system in place of judicial elections.³ The Ohio campaign was the latest in a series of highly contentious state judicial elections in recent years.⁴ For example, in 1986 California's Chief Justice Rose Bird and two of her colleagues were ousted after a campaign that focused on the trio's decisions in death penalty cases.⁵ Then in 1996, Page 524 Nebraska Chief Justice David Lanphier lost his seat after writing a unanimous opinion that invalidated a term-limits amendment to the state constitution,⁶and Justice Penny White of the Tennessee Supreme Court was defeated largely on the basis of her joining an opinion overturning the death penalty in a notorious rape and murder case.⁷ Meanwhile, Alabama has had a series of tumultuous supreme court election campaigns over the past decade.⁸ In short, the Resnick campaign reflected the increasing involvement of interest groups in judicial elections and the escalation of the cost of those elections.⁹ Chief Page 525 Justice Moyer's reform proposals mirror ideas that have received nationwide support.¹⁰

This article examines the background to the 2000 Ohio Supreme Court election and suggests that the contention surrounding Justice Resnick's reelection bid arose less from the state's method of choosing judges than from a political culture that places substantial weight on judicial philosophy and case outcomes. If legal doctrine is politically salient, those who care about the law will seek to influence the composition of the judiciary. This in turn counsels against unrealistic expectations about reform of the judicial selection process. Things may improve at the margin, but the most likely check on the worst excesses might well be the difficulty of sustaining a slash-and-burn political strategy at least in the judicial context. After all, Justice Resnick did win despite the heavy artillery she faced last year.¹¹

This article proceeds in four stages. Part I examines the major rulings, relating to tort reform and school funding, that prompted the harsh and expensive Ohio campaign. Part II compares the process for appointing federal judges, particularly Supreme Court justices, which has also become notably contentious over the past three decades. Part III discusses the trend away from strict limitations on campaign speech by judicial candidates, which combined with the expansive protections afforded to independent expenditures in election campaigns will facilitate sharp rhetoric by those inclined in that direction. Finally, Part IV assesses the prospects for elevating the level of discourse in judicial selection.

I The Underlying Issues in the 2000 Ohio Supreme Court Election

Two major issues galvanized interest group involvement in Justice Resnick's reelection campaign.¹² One was tort reform, the other school funding.¹³ During the year preceding the November 2000 election, Resnick wrote the majority opinion in important cases dealing with both subjects.¹⁴ Page 526

Both times the Ohio Supreme Court was divided four to three so that electoral fate might well have determined the direction of legal doctrine in the state on these and similar issues.¹⁵ This section examines Justice Resnick's opinions in the high-profile cases that became the focus of the campaign debate. Although those opinions were open to criticism, her most strident opponents in the business community obscured the real analytical difficulties in ways that helped her galvanize support and win reelection.

A Tort Reform

Between 1975 and 1987, the Ohio General Assembly enacted several measures designed to make it more difficult for tort plaintiffs to recover and limiting how much they could receive.¹⁶ Beginning in 1986, the Ohio Supreme Court invalidated some of the central provisions of the new laws for violating the state constitution.

Many of these rulings concerned the time within which medical malpractice actions must be filed The legislature set a one-year statute of limitations accompanied by a four-year statute of repose.¹⁷ This meant that all malpractice claims had to be brought within one year after the plaintiff discovered the injury, but in any event within four years of the occurrence of the alleged malpractice.¹⁸ The court incrementally gutted these requirements in a series of rulings.¹⁹ First to go was the statute of repose as applied to minors below the age of ten.²⁰ The malpractice law tolled the time limits for only four years.²¹ This would prevent a child injured before her tenth birthday from suing in her own right because the four-year statute of repose would expire before she turned eighteen.²² Denying the right to sue contravened the due course of law provision of the Ohio Constitution.²³ Soon afterward the court rejected the statute of repose as applied to plaintiffs who did not discover their injuries within the four-year deadline.²⁴ This restriction Page 527 contravened the state constitutional right to remedy for personal injury.²⁵Next came a ruling striking down the statute of repose as applied to a plaintiff who discovered her injury in the fourth year after the occurrence of the alleged malpractice.²⁶ Enforcing the statute of repose would give such a plaintiff less than one full year to prepare her case before filing suit, but the one-year statute of limitations showed that the legislature intended malpractice plaintiffs to have that long to go to court.²⁷ The statutory distinction between those claimants who discovered their medical injuries in time to file within one year and those who discovered their medical injuries less than a year before the expiration of the statute of repose violated the state constitutional guarantee of equal protection because there was no rational basis for the distinction.²⁸

Other procedural restrictions met a similar fate based on the separation of powers.²⁹ First down was a statutory ban on including a specific amount of damages in the complaint when the plaintiff sought more than $25,000.³⁰ This ban conflicted with a procedural rule promulgated by the court that required plaintiffs to specify the amount of damages they sought.³¹ Because the state constitution empowered the supreme court to "prescribe rules governing practice and procedure in all courts,"³² the procedural rule trumped an inconsistent statute.³³ The same reasoning led to the demise of an additional pleading requirement for malpractice plaintiffs.³⁴ The malpractice statute mandated that complaints document that the plaintiff or her lawyer had sought to examine or copy the patient's medical records before filing suit.³⁵ This statutory requirement conflicted with another procedural rule that contained no provision for affidavits or other verification in malpractice pleadings, so Page 528 the inconsistent statute had to fall.³⁶

The legislature did not confine itself to procedural barriers.³⁷ The malpractice statute also imposed restrictions on damages, but the court did away with those as well.³⁸ The ceiling of $200,000 on general damages was first to go.³⁹ Although the cap was promoted as a way to address the crisis in medical malpractice insurance, the majority found no rational connection between general damage awards and malpractice insurance rates.⁴⁰Accordingly, the cap violated the Ohio constitutional guarantee of due process of law.⁴¹ Then came a ruling that overturned a provision requiring that malpractice damages in excess of $200,000 be paid periodically rather than in a lump sum.⁴² This requirement could result in a successful plaintiffs receiving less than the full amount of the verdict, which violated the state constitutional right to a jury trial.⁴³

The court took a similarly skeptical view of tort reform in general.⁴⁴Having effectively dispatched the malpractice statute of repose, the justices struck down a ten-year statute of repose for architects and engineers.⁴⁵ That deadline could prevent persons injured as a result of negligent design or construction from obtaining relief from those responsible for their injuries and therefore violated Ohio's constitutional right to remedy.⁴⁶ This ruling relied heavily on an earlier decision invalidating a two-year statute of limitations for Page 529 plaintiffs exposed to diethylstilbestrol (DES).⁴⁷ That case involved a provision that triggered the statute of limitations when a woman learned from a physician that she had an injury "which may be related" to her exposure to DES during her mother's pregnancy.⁴⁸ Relying on the earlier decisions against unduly restrictive time limits for filing medical malpractice actions, the majority concluded that the DES time limit...