Tipping the scales of justice

8/31/2002

When Democrat gubernatorial challenger Tim Hagan said a week ago he would not be running television advertisements in his effort to unseat incumbent Republican Bob Taft, insiders could almost feel the tilting of the political landscape.

With the Hagan announcement, the focus this Labor Day weekend is shifting from the top of the statewide ticket to the race for an open seat on the state Supreme Court, which has become the settling point for major issues facing Ohio.

The court features a 5-2 Republican majority, but Democrats hold what state GOP Chairman Robert Bennett calls “a philosophical majority,” as Republicans Andy Douglas and Paul Pfeiffer regularly vote with the Democratic bloc on the court.

The race to fill the seat being vacated by Mr. Douglas - a Toledo political fixture - pits Democrat Tim Black, a Hamilton County Municipal Court judge, against Republican Lt. Gov. Maureen O'Connor. Because the Douglas seat represents the swing vote on a court that Democrats have used successfully to foil Republican legislative initiatives, partisans and special interests have dumped a lot of money into both campaigns.

“People say my race is the hottest race on the statewide ballot. We tend to agree with that. The stakes are enormously high in terms of keeping the court fair and independent,” said Mr. Black. “And I think from Day One my party has viewed these races as critical races.”

Ms. O'Connor said she has seen the race grow in importance in the past couple of months, as the outcome in other statewide races - including the race for governor - have become somewhat predictable.

“I think it is going to be important to get the vote out and to educate voters on the importance of the Supreme Court race,” she said. “It's important to explain to them how the Supreme Court affects their everyday lives and affects their pocketbooks and their jobs. This is made more important in this time of economic downturn.”

Because the next court will likely decide high-stakes questions about public school funding and tort reform, private interests involved in those issues are expected to be heard in the O'Connor-Black race, both by contributing directly to the candidates and by running ad campaigns of their own.

“I think you are going to see the most expensive nongubernatorial race ever in that Supreme Court race. Tim Black has done an amazing job raising money, but Maureen O'Connor will have all she needs,” said Toledo Democratic strategist James Ruvolo, a former state party chairman.

Mr. Bennett says he is pleased with the O'Connor candidacy and is optimistic she will win in November. But, he said, he is concerned that judicial campaigns are becoming much more political than they used to be.

“What has happened is, the trial attorneys started doing more screening of candidates for philosophical differences,” he said, adding that conservative groups have also gotten into the act. “What they are doing is driving them to extremes. I am very concerned long term about where we are going,” Mr. Bennett said. “With the computers, they check the philosophical differences, and they want to have the pure judges that are leaning one way or another.”

As judicial campaigns begin to look like every other type of political campaign, the GOP chairman said Ohio is on the road to “real problems,” he said.

Adding to the politicization of judicial races, he said, was this year's U.S. Supreme Court decision loosening the “gag” rule on judicial candidates that kept them from discussing issues in any detail. Candidates are still prohibited from saying how they would rule in a particular case, but they can now say more about issues facing the court.

“I think the shackles are off these folks,” said Mr. Ruvolo. “I am not advising any Supreme Court candidates, but I would tell them `Talk about issues. Forget the gag. Draw this race out on the things that people care about,'” he said.

“Tim Black has to talk about education, has to talk about jobs, has to talk about `Whose side are you on? Are you on the side of the big companies of this state that tried to defeat [Justice] Alice Resnick or on the side of the little guy, whose only recourse right now is the courts,'” Mr. Ruvolo said.

Ohio Democrats have turned the 2000 re-election of Ms. Resnick into a rallying cry, as she fought a bitter battle against an independent advertising campaign that portrayed her as beholden to special interests. She won a convincing victory and has since been hailed as a symbol of success by party members, who have had little to cheer about in statewide politics during the last decade.

“The politicization of the court is frightening,” Mr. Black said. Industrialist and charter school magnate David Brennan, an O'Connor supporter, “has announced he's gonna raise money from contributors and not disclose them and participate in so-called issue advocacy, which is what the group did the last time against Justice Resnick. The chamber of commerce has said they're going to be engaged in the race. They claim they won't go negative,” he said.

Ms. O'Connor said that, as a candidate, she can have no control over what third-party groups do in the race, but she said she believes the chamber of commerce, which opposed Ms. Resnick two years ago, has learned from its mistakes.

“I think the lesson that can be learned from the 2000 race is that negative, nasty campaigning doesn't work. It's not palatable to the citizens of Ohio,” she said. “The obvious lesson is: `Don't do it.'”

Republican Chairman Bennett said special interests will also weigh in supporting Mr. Black because it is the only branch of government Democrats can realistically hope to control through November's elections.

“The emphasis on the court comes not only from the Democratic Party but also from organized labor and also from the plaintiff's bar. There's no question about it,” said Mr. Bennett.

Ohio Democratic Party Chairman Denny White said, “if we don't keep a balanced and fair court, the general public after this election is going to get a real rude awakening of just how important the court is when the Republicans control all branches of government.” He predicted the GOP would veer to the political right if the court comes under their philosophical control.

More evidence that the court race will be a battle ground for ideologues can be found in the candidates' campaign finance reports. Both have received a lot of money from their parties and special interests.

According to the public interest research organization Ohio Citizen Action, Ohio Supreme Court Justice candidate Tim Black raised more money in the first six months of the 2002 campaign - $745,858 - than the total amount he generated during his entire 2000 campaign - $647,842.

Almost half of the contributions to justice candidates - 48.5 percent - so far this year are from lobbyists and lawyers, with a total of $942,433. Labor unions contributed $93,200 or 4.8 percent. Some of those contributions went to incumbent GOP Justice Evelyn Stratton and her Democratic challenger, Janet Burnside, a common pleas judge in Cuyahoga County, who are locked in the other race for a seat on the high court.

Overall, Mr. Black reported $919,487 cash on hand as of the end of July, while Ms. O'Connor reported $605,879.