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Democrats see change on Ohio court

Come November, there will be at least one Democrat headed onto the all-Republican Ohio Supreme Court.

That risk-free political prediction is based on Justice Maureen O’Connor’s candidacy for chief justice.

If O’Connor captures the position being vacated by the retiring Thomas Moyer, she will leave open her current seat.

Gov. Ted Strickland, a Democrat, will have the power to appoint someone to fill the remainder of her term, and even if he loses his re-election bid, he’ll presumably make it a priority to name her successor before he leaves office.

But couldn’t O’Connor lose, you ask? Of course. But that would mean a Democrat, Franklin County probate judge Eric Brown, had bested her for chief justice. In that case, he would head the court and she would go back to her current seat.

Ohioans will also be electing two more justices this year. Yet another risk-free political prediction: One will be Justice Paul Pfeifer.

The outspoken former state lawmaker has so often registered a vocal dissent from his GOP colleagues on the court that Ohio Democrats decided not to challenge him.

With so many heated contests shaping up this year for Ohio Democrats — who are seeking to hold onto a near-sweep of statewide offices they managed in 2006 — why spend a lot of money on a Supreme Court race that will have little impact on the final judgments of the court?

There are only three positions open on the 7-member court this year, so there is zero chance of a majority for Democrats. Meanwhile, they will be spending piles of money to retain the governor’s seat for Strickland and to keep at least one additional seat on the state Apportionment Board that draws legislative boundaries.

In an ideal world, the party makeup of the court shouldn’t matter, said Edward Foley, a professor at the Ohio State University Moritz College of Law.

“The idea would be, for any Supreme Court, that all the decisions would be unanimous and there would be the sense that the law with a capital “L” would be dictating these outcomes,” he said. “But the law doesn’t work that way automatically. There seems to be more subjectivity and less objectivity in judicial decision-making, including on the U.S. Supreme Court, than there once was.”

Still, Foley said great justices — and he counts the outgoing Moyer among them — are able to separate their party affiliations from their rulings.

“That’s what judicial virtue is, and I’m a big believer in judicial virtue,” he said.

In that way, he said, Ohio’s exclusively Republican court doesn’t have to be viewed as a negative by Democrats.

“But no one’s perfect. So people who are sincere and people of integrity still sometimes diverge about how they see the law based on their sincere philosophy, which can be based on their political beliefs,” he said.

Courts controlled by one party can be particularly disconcerting when issues surrounding elections — such as last year’s battle over provisional ballots in Ohio — are being decided, he said.

Diversity — of party, race, or ethnic background — has also been found to benefit the legal deliberations that a court has even when it doesn’t affect the ultimate vote on a ruling. Former U.S. Supreme Court Justice Sandra Day O’Connor noted this was the case when Justice Thurgood Marshall, the great-grandson of a slave, sat on the nation’s highest court.

“There’s a visceral quality to just hearing those stories from one of your colleagues on the bench as you’re deciding a case,” Foley said.

The third court seat before voters this fall is currently held by Justice Judith Ann Lanzinger. Lanzinger faces Democrat Mary Jane Trapp, a former Ohio Court of Appeals judge who is currently 11th District presiding/administrative judge.

Julie Carr Smyth is a Statehouse Correspondent for the Ohio Associated Press.