What Do We Do with Bad Candidates? Elected Judges and Electoral Pipelines

Let’s talk about state supreme courts for a bit. Elected judges are bad for basically every reason, but news in Ohio about the 2020 races has led me to recognize yet another problem with them.

Ohio’s state supreme court, like many other state supreme courts, has a bar admission requirement for the office. Specifically, someone must have been admitted to the Ohio bar for 6 years before they can run for the office.

This makes sense in theory. But in a state such as Ohio, it makes it extremely hard for leftist candidates to run.

Here’s what I mean.

Lawyers are one of the most Democratic-leaning professions in the country. This study doesn’t capture the left gradients within the profession, but it does demonstrate the uneven Dem/GOP split that’s consistent in most segments of the profession.

The study also notes that judges do not share that same lean. This is, in large part, because the greatest affirmative action program in US history, the Federalist Society, has elevated attorneys into the halls of power for decades as long as they are willing to swear fealty to ultraconservative principles of legal interpretation.

And, of course, judicial elections tend to also do the same in general. If a party is winning 50% of downballot elections (which are actually skewed slightly toward Republicans already), an elected judiciary will reflect that.

But there’s more. And in this case, it’s a Democratic framework that is killing leftist judicial candidates.

Let’s say you work at a nonprofit. In order to run for office, you likely have to resign. And your position will not be held open for you if you lose; you will likely have to find another job upon the completion of the campaign, regardless of how long you’ve been at the nonprofit or how good your work has been. And if you’re in private practice, it can be even harder.

It’s extremely difficult to suspend or shutter a law practice, moreso if the plan is to do it temporarily. If you have dozens of active clients, winding all of those representations down takes time and effort. And if you think you’re going to return to law practice in 6-12 months, you’re faced with the prospect of then having to rebuild your client base more or less from scratch. Many, if not all, of your former clients will have found new representation in the meantime.

Perhaps, if you’re an associate at a firm or something similar, you can extricate yourself with minimal hassle. But if you’re required to have at least six years of practice experience, the likelihood in a state like Ohio is that a private practitioner is going to have a ton of logistical concerns in leaving their position.

The result of this is that most Supreme Court candidates are drawn from an extraordinarily small pool: people who are already judges at some level in Ohio. And in Greater Cleveland, one of the Democratic strongholds in the state and the home of many statewide Democratic candidates, this means that the candidate has already gone through the electoral machine at least a little bit.

Now, I’m not here to accuse judges in Cuyahoga County of being participants in a patronage system, despite past county government issues. But the legal community is small, and these elections tend to be more predictable as a result.

And of course, this intersects with one of Cleveland’s persistent problems over the last decade: a police force that believes it is truly above the law, and a court system that is mostly content to let them get away with it.

Enter John O’Donnell, one of the longest-tenured judges on the Cuyahoga County Court of Common Pleas. He’s mounting his third bid for Ohio Supreme Court, challenging far-right justice Sharon Kennedy. Kennedy has joined such majorities as the one that determined that Romell Broom could be re-executed, despite a first execution attempt where Mr. Broom underwent dozens of painful attempts over multiple hours to find a usable vein, with some of the attempts to find a vein in Mr. Broom’s arm scraping bone without any anesthetic.

Under normal circumstances, this should be an easy choice for me. What could possibly disqualify John O’Donnell, running as a Democrat, that I’d give this race a second thought?

Well, 137 shots might do it.

As a refresher, in 2012, the city of Cleveland conducted a high-speed chase after hearing a suspected gunshot from a car. At one point, the chase involved 62 police cars, and once cops cornered the car, they started shooting. The gunfire confused multiple cops, and so many of them started shooting at the car from multiple directions. Michael Brelo kept shooting even after others had stopped, jumping onto the hood of the car and firing the last 15 of his 49 shots down through the windshield. All in all, 137 shots were fired.

Timothy Russell and Malissa Williams were both hit over 20 times. No weapon was found in the car.

Five officers were charged with misdemeanors, but Brelo was charged with involuntary manslaughter, as well as a lesser charge of felonious assault. In 2015, a judge rendered a not guilty verdict on both, saying that Brelo was justified in the shots that he fired.

You guessed it: Judge John O’Donnell.

O’Donnell actually gained substantial vote share between his 2014 and 2016 runs for Ohio Supreme Court. This makes sense, since 2014 was a bad year for Democrats. He only lost in 2016 by about 22,000 votes. He might have won if he hadn’t underperformed by over 23,000 votes on the East Side of Cleveland, where the Russell and Williams killing occurred.

I’m still undecided about what I’m going to do in November. It’s likely that O’Donnell will have a better overall profile and create better outcomes for thousands of Ohioans if he is elected to a six-year term as justice. But I say that in spite of his own reading of the law in 2015, one that I do not personally find consistent. The evidence I have doesn’t really back up my own claim. And I feel like the only conclusion that I can make is that neither O’Donnell nor Kennedy has earned my vote.

Since the nominees are set for this race, there isn’t a lot that my yelling about progressives running for office can do about this seat, at least until 2026. And while I do think that too many of us are not considering it seriously enough, it is important to keep in mind that the John O’Donnells of the world don’t get a third crack at higher office simply by chance.

But what that means is that we need to do a better job of developing pipelines, and those of us that actually have the ability and means to run need to be taking it all the more seriously. And even in races like this, there are opportunities for progressives: in 2016, three Ohio Supreme Court seats were up, and the party fielded only two candidates: O’Donnell and Cynthia Rice, leaving Chief Justice Maureen O’Connor somehow unopposed for reelection.

In a profession that leans as far Democratic as the law does, this is unacceptable. But leftists don’t need to pressure state parties to fill those electoral gaps. We have the ability do it ourselves. And if nobody else files to run, that nomination is ours for the taking.

The work continues at every level. But there are opportunities available here too.

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