Supreme Court: Sorting Out Ratings and Endorsements

There are two Supreme Court seats up for election, and both have a two-candidate Democratic primary. The first race pits incumbent Justice Terrence O'Donnell (R-Rocky River), first elected in 2004 to fill out the unexpired term of Justice Deborah Cook (R), against either 11th District Appellate Judge William B. O'Neill (D-South Russell) or Common Pleas Judge A.J. Wagner (D-Dayton). In the other race, for the seat of retiring Justice Alice Robie Resnick (D-Toledo), who is the only Democrat on the seven-member court, it's 3rd District Appellate Judge (and former State Senator) Robert Cupp (R-Lima) against either former Senate Minority Leader Ben Espy (D-Columbus) or Cuyahoga County Juvenile Judge Peter Sikora (D-Cleveland).

Two of the Democrats have run for the Supreme Court before. O'Neill, who famously does not accept any but token campaign contributions, was defeated by O'Donnell in the 2004 special election, in which O'Donnell outspent O'Neill by two million dollars. Sikora lost to incumbent Justice Andy Douglas (R) in 1996. As reported in the Toledo Blade here, the Democrats plan to make an issue of the fact that O'Donnell and two other Republican justices placed thousands of dollars in campaign contributions they received from Governor Bob Taft's former aide H. Douglas Talbott in escrow, after accusations surfaced that the money was illegally laundered by indicted coin dealer and Republican fundraiser Tom Noe. This issue would work well with O'Neill's extreme stance regarding campaign contributions and judicial independence. However, the Ohio Democratic Party has endorsed Wagner over O'Neill, apparently because O'Neill's principled stance against campaign contributions will handicap him in the general election. The ODP has also endorsed Espy over Sikora, motivated at least in part by the desire to include as many African-Amerians as possible on the statewide ticket (Auditor candidate State Rep. Barbara Sykes (D-Akron) is the only other).

Ratings. I have located judicial ratings by two state-wide organizations, the Ohio State Bar Association and the Ohio Women's Bar Association. I have also found ratings by four Cleveland-area organizations, the Cleveland Bar Association, the Cuyahoga County Bar Assocation, the Cleveland Criminal Defense Lawyers Association, and the Norman S. Minor Bar Association, the last being an organization for African-American lawyers. I have seen indications that ratings are also performed by the Columbus Bar Association, the Cincinnati Bar Association, the Toledo Bar Association and the Akron Bar Association, but I have not found current ratings by these groups (or in the case of Akron, none for the Supreme Court candidates). If I have missed any, I would appreciate readers letting me know about it.

In the race for O'Donnell's seat, the big surprise is that the Ohio State Bar Assocation has downgraded the incumbent from the Highly Recommended rating he earned in 2004 to just Recommended (lower than Espy, who has never been a judge). As between the Democrats, O'Neill's ratings are uniformly superior to Wagner's. The OSBA and OWBA rated O'Neill as Recommended and Excellent, respectively, while each scored Wagner as merely Adequate. O'Neill got a perfect sweep of Excellent ratings from all four Cleveland-area groups, while Wagner managed only Adequate from the Cleveland Bar Association and Good from the rest. O'Neill has been an appellate judge for many years, while Wagner has served on the Court of Common Pleas bench for only five, having been County Auditor for ten years before that.

In the other race, Cupp earned Highly Recommended from the OSBA, as did his Democratic opponent Espy, while his other opponent Sikora was given the lower rating of Recommended. However, Sikora was awarded higher marks than Espy by the OWBA (Excellent vs. Good) and the Cleveland Bar Association (Good/Preferred vs. Good), and the two were scored evenly by the other three, each winning Good from the county and criminal defense groups and Excellent from the African-American lawyers group. The inconsistency of these ratings probably reflects the apples-and-oranges quality of their respective credentials. Sikora, who is a paraplegic due to a childhood trampoline accident, has been a judge for 17 years, while Espy has never served on the bench. On the other hand, Espy has had a remarkable and distinguished career as an attorney in the Office of the Attorney General and as a legislator on the Columbus City Council and in the Ohio Senate, where he was Senate Minority Leader and wrote a brief for the Senate Democratic Caucus in the Supreme Court school funding litigation. Rating these two candidates requires a subjective weighing of judicial experience against public policy and litigation experience.

Endorsements. I'm disappointed that I have only been able to locate newspaper endorsements from two sources, the Cleveland Plain Dealer and the Cleveland suburban Sun Papers, each of whom chose O'Neill over Wagner and Espy over Sikora.

In the Plain Dealer, the editors praise O'Neill for his "bluntness":

"We still wince at his talk of holding the legislature in contempt for not reforming education funding, but we applaud his incisive critique of the Supreme Court's nonchalance toward conflicts of interest when big donors come before the bar.

Wagner, on the other hand, is characterized as a "genial guy" whose "his rulings seem more impetuous than thoughtful."

I don't have a problem with the Plain Dealer's reasoning in picking O'Neill over Wagner, but their analysis of the other race is frankly ridiculous. After noting Sikora's physical disability and saying that he "offers an inspirational life story," the editors praise him for his "unquestioned talent" and having "generally done fine work in his courtroom." Those are important and relevant factors, and they are favorable to Sikora. So what do the editors dislike about the man?

"Sikora now says he regrets some of his past, intemperate feuds with colleagues. Unfortunately, he has become a team player in the court's irrational opposition to a new juvenile complex in Cleveland's Fairfax neighborhood."

That's IT? You can't endorse Sikora because of squabbles between judicial colleagues, and a local political struggle about where to build the new juvenile court facility? For details about the latter, read TV news coverage here. In brief, local juvenile court judges objected to the county's unilateral decision to move the court's facilities from its convenient downtown location to a depressed neighborhood that would benefit economically from the project. Judge Joseph Russo said: "Any unilateral change in that agreement is not acceptable to the court, and the court will take any necessary steps to prevent that from happening." Sikora joined in with: "We are in separate branches of government. We need to work together. There has to be a realization though that one branch does not dictate what the other branch does." It sounds to me like the judges have an excellent point, and in any event this local power struggle is an absurd basis for downgrading a Supreme Court candidate.

Turning to Espy, the editors praise him for "working well across party lines" during 20 years of legislating, which "required careful listening and willingness to understand all sides of an argument." Although wary of the prospect that "an old legislator running for the bench simply wants a new venue to make law," the editors select Espy as the better choice. That first part is pure twaddle. Conflating political negotiation with appellate adjudication is inane. The latter point is a negative, if anything, so where's the basis for preferring Espy?

Personally, I like O'Neill over Wagner because of his grittiness and his superior judicial qualifications, despite my qualms about the disparity in campaign cash in the upcoming general election. The other race is a much closer call, but I like Sikora because of his judicial experience and the historical and jurisprudential significance of putting a severely physically disabled person on the high court, although I think that Espy will be a fine candidate if he wins the primary.

UPDATE: Okay, my bad, I missed that the Dayton Daily News has endorsed Espy and O'Neill, and the Akron Beacon Journal has likewise endorsed Espy and O'Neill. The former is especially interesting because it is Wagner's hometown paper.