Judges shouldn't make political endorsements

The Ohio Supreme Court erred when it struck down a rule that barred Buckeye State judges from making political endorsements. The decades-old rule existed for good reasons: Judges should strive to maintain their objectivity and avoid even the appearance of favoritism. As Justice Pat Fischer, a Republican and the lone dissenting vote in the 5-1 decision, noted, the Judicial Canons, which govern the conduct of Ohio judges, are clear on exactly that point. He pointed to Canon 4, which says: "A judge or judicial candidate shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary." How are judges supposed to be viewed as independent arbiters of law and fact in cases involving those they have endorsed? Even the majority decision, written by Republican Chief Justice Sharon Kennedy, recognized the potential for problems. (Kennedy was joined in the decision by four other Republican justices. The court's lone Democrat, Justice Jennifer Brunner, didn't participate in the decision.) In what she dubbed "A Word of Caution," Kennedy wrote that "judges must be cognizant of how their actions appear to the public." She continued: "That may mean that a judge should forgo making some public statements even if those statements would constitute protected free speech." Ohio's judges should heed that word of caution, lest the public become even more suspicious that judicial decisions are motivated by politics rather than the law. Already that suspicion has seeped into the public discourse, especially when it comes to the U.S. Supreme Court. Too often, the conservative majority appears eager to find ways to accommodate the Trump administration's legal excesses. (The court does occasionally go against President Donald Trump, as it did in rightly ruling his tariffs unconstitutional.) Likewise, the Ohio Supreme Court has become more politicized in recent years. As an example, look at the court's redistricting rulings a few years ago, which largely split along partisan lines. At the time, there were four Republicans and three Democrats on the court. The three Democratic justices, joined by then-Chief Justice Maureen O'Connor, a Republican, struck down congressional and state legislative maps as unconstitutional gerrymanders. As soon as O'Connor left office, no one who was paying attention doubted that the four GOP justices would side with their party in future redistricting cases. Beyond that, the Republican-dominated Ohio legislature now requires partisan labels in Supreme Court and appeals court races in the general election, a move clearly designed to give GOP candidates an edge. (Judges at the county and municipal levels still run in partisan primaries, but they aren't identified by party on the general election ballot. As we've argued before, all judicial candidates should be identified by political affiliation, or none should.) Moreover, as Fischer noted in his dissent, political endorsements could lead to judges having to recuse themselves from cases. For example, he wrote, if every judge in a county endorsed a candidate for county prosecutor, they might all need to recuse themselves from hearing cases involving the prosecutor's office if that candidate won. That would lead to the unnecessary expense of bringing in visiting judges to hear those cases. Fischer added that if those judges didn't recuse themselves, "the public will be left with serious doubts regarding the ability of those judges to remain impartial." So why did the Supreme Court strike down the rule against judges making political endorsements? "Judges do not give up their First Amendment right to engage in political speech simply by assuming office," Kennedy wrote. Judges are certainly entitled to their own political views, but when they start issuing political endorsements, they become no different from other politicians. Adhering to reasonable restrictions on their conduct, including political activity, is part of the bargain when one becomes a judge. Judges wield immense power, and such power comes with the responsibility to avoid even the appearance of a conflict of interest. The decision, issued April 2, also was an unforced error. It arose out a disciplinary case involving now-retired Clinton County Common Pleas Judge John Rudduck, who made social media posts supporting his son's candidacy for a municipal judgeship. (The son, Brett Rudduck, lost that race.) A disciplinary panel had recommended that the elder Rudduck be given a public reprimand over his conduct. (The decision cleared him.) But Rudduck's lawyers didn't raise the constitutional issue that his First Amendment rights were abridged. Rather, the justices waded into that issue on their own, which, as Fischer noted, meant neither side had a chance to weigh in on the merits of such a massive change to judicial rules. Fischer also pointed out that the decision sidestepped the normal rule-making process for the judiciary, which typically involves input from judges, lawyers and others. As Catherine Turcer, the executive director of Common Cause Ohio, put it to The Ohio Capital Journal, "Essentially the Ohio Supreme Court, without benefit of briefs, a full hearing, or public feedback, just decided Ohio is now the only state in the nation that permits judges to make partisan endorsements." Some judges might be eager to dive into the political fray, but they should restrain themselves. Just because judges now can make political endorsements doesn't mean that they should.