Supreme Politics

Court candidates attempt to hint their way into voters' hearts.

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Justice Resnick's Supreme Court opinion declared that Ohio's school funding system is unconstitutional. - Walter  Novak
Justice Resnick's Supreme Court opinion declared that Ohio's school funding system is unconstitutional.
Last month, a thousand people paraded through the streets of tiny McArthur, Ohio -- veterans, cops, peewee football players, and the Vinton County Queen. It was, as the editor of The Vinton County Courier put it, one of the biggest events southeast Ohio has seen in years.

The paraders marched from the county's overcrowded old high school, built in 1913, to its new school. Inside, at the dedication ceremony, Ohio Supreme Court Justice Alice Robie Resnick spoke about the importance of education and the jobs and opportunities the new school would bring. Witnesses say Resnick was emotional and seemed to hold back tears.

It was no ordinary appearance by a judge. Since Vinton County's schools appeared in a PBS documentary a few years ago, they've become a dramatic example in the debate over the plight of Ohio's poorer school districts. And Resnick is part of the Supreme Court majority that has twice declared Ohio's system for funding schools unconstitutional.

The justice's unusual, high-profile appearance comes during her unusually high-profile campaign for reelection. Next May, the Supreme Court plans to review the controversial school case again. It's one of a few major court cases where Resnick was part of a 4-3 majority. Interests ranging from business groups to trial lawyers will spend millions on the campaign, turning it into the biggest statewide race on the ballot and threatening to make it exactly what a judicial election shouldn't be: a campaign dominated by partisan issues.

Tradition, law, and the lofty principles of American government all say judges are supposed to be above politics, removed from the political customs of making promises and swaying with public opinion, so they can interpret the law fairly and independently.

But both Resnick, who was placed on the ballot by the Democratic Party, and her Republican opponent, Cleveland-area appeals court judge Terrence O'Donnell, are dropping none-too-subtle hints about where they stand on school funding, edging close to the line that prohibits judges from saying anything substantial about pending cases or taking sides on issues likely to come before the court. Both insist they'll uphold the court's integrity and independence, but their hints encourage voters to think of the race as a political referendum on the school issue.

Take a look at the candidates' websites, and Resnick pledges to "defend educational opportunity for Ohio's schoolchildren," a reminder that she authored the court's 2000 opinion declaring Ohio's school funding unconstitutional, because it relies heavily on local property taxes, leading to inadequate schools in poorer districts.

O'Donnell doesn't leave much room for speculation about his position. "The Supreme Court has even put forth rulings on the acceptability of Ohio's longstanding system of funding our public schools," his website reads. "Decisions on far-reaching issues such as these can have a direct effect on the amount of taxes we pay."

The reference to taxes echoes Republican attacks on the court's decision. Legislators have complained they'll be forced to raise other taxes if they have to wean schools off property taxes. So the state Republican Party is campaigning against Resnick as if she were a tax-hiking liberal legislator. They're calling the campaign "Defeat Alice Resnick Tax Hikes" -- acronym DARTH, with the good-versus-evil Star Wars metaphors you might imagine.

O'Donnell denies trying to send a hint through his site. "It's factual information," he says. But to Lawrence Baum, an Ohio State University professor who studies judicial campaigns, O'Donnell's making the sort of veiled reference to an issue that's common when judges run for office.

"It's just kind of hinting around the edges, isn't it? That's a classic approach to take," Baum says. "He's not explicitly saying [the school] decision was wrong, but by focusing on taxes, he's probably letting you know he's not sympathetic toward it."

Resnick also questions the statement on her opponent's site. "I don't think a judge should be saying [that]. It's not a very judicial-sounding statement."

When O'Donnell campaigns, he often tells audiences he supports the separation of powers between courts and the legislature -- a principle Resnick's critics have accused her of violating in the school case. O'Donnell claims to follow a philosophy of "judicial restraint," not "judicial activism," the latter a slur conservatives often invoke to describe liberal members of the bench.

In April, Chief Justice Thomas Moyer, who dissented in the school case, told a group of Republicans that O'Donnell shares his judicial philosophy and that electing him would restore balance to the court. (The court is 5-2 Republican, but two Republicans voted with the Democrats on key cases.)

O'Donnell denies trying to drop hints. "I'm talking about my judicial philosophy. I'm not trying to be critical of my opponent," he says.

"The only message I'm trying to send to anyone is, I'm a serious candidate, I have a record of 20 years of judicial service, and I'm offering my qualifications and candidacy and my pledge of impartial, faithful discharge of the powers of the office."

Both Resnick and O'Donnell are experienced, well-regarded judges. Resnick has spent 12 years on the Supreme Court and 13 on lower courts, while O'Donnell's 20 years as a judge include 5 on the appeals court. Both received "recommended" ratings from the Ohio State Bar Association.

But just as partisan politics and big issues like abortion creep into national Supreme Court nominations, so do they in the Ohio Supreme Court race, where candidates are nominated by parties, but appear in the nonpartisan part of the ballot.

Business groups will spend millions to try to defeat Resnick because of an opinion she authored that struck down monetary limits on lawsuits. Labor unions and trial lawyers say they'll defend her. Special interests are expected to air repeated TV ads before the election, and unlike the candidates, who are bound by judicial canons and spending limits of $550,000, the independent groups have few limits on what they can spend or say.

Resnick speaks more freely than O'Donnell does about the schools issue, because the canons don't prevent her from talking about past decisions. But with the court deciding in May if the legislature has changed the school funding system enough, she says she's careful not to say anything she hasn't already written in her opinions.

Resnick says there's nothing wrong with pledging to defend educational opportunity. "It's a constitutional right," she says. "I uphold the Constitution." O'Donnell declined to comment on Resnick's pledges, saying he won't criticize his opponent.

After Resnick appeared at the Vinton County High School dedication, The Columbus Dispatch editorialized that she'd damaged her claim to impartiality, since a plaintiff in the school case also spoke there.

The paper also argued that Resnick's appearance must have helped her politically by indirectly reminding the crowd that the Supreme Court forced the General Assembly to help build new schools in places like Vinton County. Jack Noragon, chairman of the good-government group Common Cause of Ohio, agrees. "It sounds like, obviously, she's involved in a little campaigning."

Resnick defends her appearance at the dedication. "It's not unusual for me to go to schools. We run for election, so we go to places where we meet people."

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