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Tuesday, July 29, 2014
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Published: Sunday, 3/16/2008

A mediocre court

WHEN it comes to judicial innovation and prestige, don't look to the Ohio Supreme Court.

That's the lesson we draw from a study out of California that ranked the legal influence of the highest courts of each state since 1940 based on how often their opinions were adopted by courts around the country.

The study, described in an essay in the December issue of the law review of the University of California at Davis, puts the Ohio Supreme Court in the lower reaches of such influence - 43rd among the 50 states. California is at the top.

Does this mean that California has brighter judges than Ohio, or, because it's a huge, diverse state, does it naturally produce a flood of challenging and novel legal issues? Maybe so, but we think that the difference is at least as much due to how judges are chosen.

California, like most other states rated highly in the study, employs a version of nonpartisan merit selection, in which judges are initially appointed by the governor from qualified individuals chosen by a nonpartisan nominating council. Voters later choose whether to retain them.

Ohio still does it the old-fashioned way: Potential judges must ingratiate themselves with political party bosses, who are less concerned with their legal bona fides than their name-recognition, electability, and fund-raising prowess.

The result: a court full of politicians who are more content exercising an agenda than leading the way on the most important legal issues of our time.

The study analyzed more than 24,000 legal opinions rendered from 1940 to 2005 and found that those of the California Supreme Court were, in legal parlance, "followed" far and away the most.

Naysayers point out that the authors of the study are employees of the California high court, but the statistics appear solid. The data were gathered by Shepard's Citation Service, a respected legal reporting firm, which included only cases that became "controlling or persuasive authority" in other courts' opinions.

Aside from California, the population of a state did not appear to have much correlation with the influence of its high court. For example, Kansas, 33rd in population, was fourth, while Kentucky, ranked 26th by the census bureau, was dead last.

Instead, virtually all of the top-ranked courts were in states with some form of judicial merit selection. That means their judges are likely to be chosen more for their legal scholarship and judgment and less for raw political concerns.

In 1987, Ohio voters defeated a ballot measure that would have instituted a merit-selection system. It's time the issue is raised again.

To his credit, Gov. Ted Strickland revived, during his first year in office, the idea of an informal nominating council for judges, although it is too early to determine how it's working.

But as long as Ohio allows its judiciary to be chosen mostly on the basis of politics instead of ability, this state is unlikely to ever have a Supreme Court truly worthy of the title.



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