Law and Disorder

You can pick your friends

At least that’s what they do in Russia

By A.J. Wagner

A perennial subject at election time is the question of why we elect judges. In Ohio, judicial candidates can hardly express an opinion beyond the promise of the fair and impartial administration of justice. They cannot tell you how they would rule on a given issue. They cannot say they will send all criminals to prison for life. They cannot endorse other candidates, announce where they stand on important issues of the day or tell you what political party they are affiliated with (except in a partisan primary).

In 2002, the United States Supreme Court ruled, in Republican Party of Minnesota v. White, that judicial candidates cannot be forbidden from speaking on issues, yet candidates fear that they might still run afoul of Ohio’s Code of Judicial Conduct which forbids that a judicial candidate, “comment on any substantive matter relating to a specific case pending on the docket of any judge; make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; or in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”

With such limits it is nearly impossible for an interested citizen to become sufficiently educated to make an intelligent choice.  So why crowd the airwaves, the ballot and our overtaxed intellects on such decisions?

In the White case, Justice Sandra Day O’Connor said, “I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines [impartiality].” Justice O’Connor went on to say that judges who are elected are susceptible to doing the popular thing in highly publicized cases for fear of being voted out of office. Such judges may also find themselves beholden to contributors who finance their campaigns. The good Justice complains that elected judges will likely be loyal to those who elect them rather than to the law.

I have a different opinion.

Look at the dysfunctional appointment system that is used for federal judges. Judges for the various United States courts are nominated by the President and approved by the Senate. In a game of pure political gamesmanship, the Republican Senate has used filibuster rules to block dozens of Obama appointments. If these can be stalled until a Republican becomes President the nominations will be withdrawn allowing for Republican appointments. The result is 76 vacancies out of the 856 judicial positions in the federal courts. 32 of these have been declared emergencies where cases are backing up and justice is being delayed for many.

Justice O’Connor worries that judges might become beholden to the public and to funders, I worry that judges may become beholden to politicians and businessmen who stack the appointment committees in state systems where judges are appointed. Citizen committees are seldom balanced for race, sex or class. The result is a plutocracy that appoints like-minded judges to oversee discrimination, employment and consumer cases where sympathies bend toward the interests of the well-to-do appointers.

I recently wrote about the separation of powers, which requires independence for the executive, legislative and judicial branches of government. My number one reason to elect judges is that the judiciary is a separate branch of government. The governor, the legislature and their appointed bodies should not control a separate and independent branch of government.

Mikhail Khodorkovsky was an oil tycoon from Russia. I say “was” because now he is imprisoned and likely will be for many years to come. Mr. Khodorkovsky, who was the richest man in the country, had dared to oppose the Russian Prime Minister Vladimir Putin.  Soon he found himself charged and convicted of various counts of criminal conduct, prosecuted and judged by Putin’s appointees. He was sentenced to eight years. When his sentence neared completion a new set of charges were brought. Khodorkovsky was convicted again and sentenced to a longer period of imprisonment where he would not be a threat to Mr. Putin.

Per the BBC, Secretary of State Hillary Clinton said the trial raised “serious questions” about the rule of law in Russia and the verdict would have a “negative impact on Russia’s reputation.”

The German Foreign Minister Guido Westerwelle said he was “very worried” by the conviction.

“The way the trial has been conducted is extremely dubious and a step backward on the road toward a modernization of the country,” he said in a statement. “It is in the interest of our Russian partners to take these concerns seriously and to stand up for the rule of law, democracy and human rights.”

This is the appointed system at work.

It may not be perfect, but I’ll take my chances with elected judges.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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