Supreme Court Candidates Discuss Judicial Philosophy
Four candidates for the Ohio Supreme Court, including two current justices, discussed judicial philosophy at an October 3 event sponsored by the 1851 Center for Constitutional Law and the Columbus chapter of The Federalist Society. Justice Robert Cupp, Justice Terrence O’Donnell, State Senator Michael Skindell, and former judge William O’Neill fielded a series of questions from Maurice Thompson of the 1851 Center during the event held at the Columbus Bar Association.
The candidates were each given several minutes to introduce themselves, with varying focus on biographical information, philosophical explanation, and – in the case of O’Neill – criticism of opponents.
Skindell emphasized the importance of stare decisis, saying precedent “gives stability and predictability in our Constitutional system – and that is essential.” Skindell also noted that the judiciary’s role requires deference to the laws and policies of the government’s other branches.
O’Neill discussed his lengthy career as a lawyer and judge before criticizing Justice Cupp and Justice O’Donnell for accepting donations from a FirstEnergy subsidiary while deliberating on a FirstEnergy case. “I believe it is fundamentally wrong for a judge to accept contributions from a lawyer or litigant and then hear on their case,” O’Neill said.
Cupp, currently serving his first term on the Ohio Supreme Court, detailed his work history as an appeals court judge and previously as Allen County’s prosecutor. Cupp mentioned the importance of the separation of powers, saying, “while the role of a judge is an important one, it’s also a limited one” and adding that judges “do not sit as a super legislature to rewrite the statute or revise the Constitution.”
O’Donnell, who has been on the Ohio Supreme Court since 2003, referred to his 32-year career as a judge. O’Donnell was a judge on the Cuyahoga County Common Pleas court – the busiest trial court in the state – for 14 years before serving 8 years on the 8th District Court of Appeals. O’Donnell also noted the importance of the separation of powers in his opening statement.
Thompson then began a series of questions the candidates were provided before the event by asking which U.S. Supreme Court justice each candidate most identifies with.
O’Donnell said that he agrees in some cases with Justice Scalia, in other cases with Justice Kennedy, and in still others with Chief Justice Roberts.
Cupp opined that comparing oneself to current U.S. Supreme Court justices was “laden with emotion” due to the attention paid to current cases. Cupp said he identifies best with former Chief Justice Rehnquist, whose work to limit the power of the commerce clause and whose “warm and cordial relations” with other justices Cupp emphasized.
O’Neill said, “I’ve always been a big fan of Sandra Day O’Connor, the reason being that she was unpredictable.” He added that he does not like Justice Scalia, saying, “I have a problem with any justice that I believe to be outcome-oriented” and citing an unlawful search case related to high school athletes.
Skindell identified with Justice Breyer, saying “his opinions, his decisions have been fact-laden,” and also with Salmon Chase. Chase was President Lincoln’s treasury secretary, in addition to serving on the U.S. Supreme Court and as Ohio’s governor. Skindell described his appreciation for Chase’s work in how the 14th Amendment is applied, adding that Chase had “an even, fair hand in [Johnson's] impeachment trial.”
The candidates were next invited to share their thoughts on discretionary review.
Skindell said that “certain types of cases impacting certain types of litigants have been predominant,” which is in his opinion “an injustice to all Ohioans.” Skindell noted the lack of elected Democrats on the Ohio Supreme Court and argued for the presence of “all viewpoints, as represented by all Ohioans” on the court.
O’Neill said, “I don’t believe that every case needs to go to the Supreme Court,” but opined that the Ohio Supreme Court “blew it” by deferring back to the legislature on the issue of Ohio’s school funding model.
Cupp explained his views on discretionary review by saying, “I look for cases where the law is unsettled in the area.”
O’Donnell said, “judges are not enactors of state policy – that role belongs to the General Assembly.”
Seeking further insight into how the candidates view the decisions of the legislative and executive branches, Thompson asked, “should the court presume liberty or presume constitutionality when the two conflict?”
Both O’Donnell and Cupp stated the court should presume constitutionality. “Courts are reactive institutions – we don’t reach out and grab an issue, someone has to bring it to us and litigate it,” Cupp said. Skindell opined that the court should rely on stare decisis and common sense.
O’Neill, on the other hand, said, “when the Ohio General Assembly oversteps the Ohio Constitution they are entitled to no deference – none whatsoever.” He returned to the issue of school funding, complaining that the court “issued an order without a remedy, and an order without a remedy is a disgrace.”
Thompson asked about campaign funding, and Skindell said, “I strongly believe that the state of Ohio should examine that model.”
O’Neill quoted a previous Skindell statement that “refuse or recuse is the rule that should be applied,” suggesting that campaigns should be financed with a new $10 filing fee added to all cases because “money and judges don’t mix.”
Cupp described the numerous existing restrictions on campaign finance and added that funding is only allowed one year out of every six-year term. O’Donnell claimed “there is no cause and effect relationship [...] between a campaign contribution and a case result.”
Because O’Neill had criticized contributions taken by the Cupp and O’Donnell campaign committees, O’Donnell counterattacked, saying, “it’s only when he gets a personal gain by making a public statement right before an election that we hear this.” O’Donnell also said a complaint O’Neill filed regarding FirstEnergy contributions was dismissed.
Asked about the importance of precedent versus the Constitution, O’Donnell mentioned Plessy v. Ferguson and Brown v. Board of Education. The candidates agreed this was a prime example of the Constitution trumping legal precedent, and Cupp described stare decisis as “a guiding principle” instead of a binding principle with regard to Constitutional law.
Skindell added that the court must be “clear and precise” when breaking with precedent, alluding to the Patient Protection and Affordable Care Act as a potential “problem when you don’t adhere to precedent” if “the court’s political makeup changes.”
In closing, Thompson asked the candidates what they are hoping to accomplish by running for the Ohio Supreme Court.
Skindell said, “I am running for the Ohio Supreme Court to bring fairness and balance in the court.”
O’Neill said, “I’m running for the Supreme Court because I want to return the Supreme Court to the non-contributors. The Supreme Court seats in Ohio have become purchases.”
Cupp noted the importance of “preserving our ordered system of justice.”
O’Donnell said, “I’m running for reelection to continue to maintain high standards of integrity.”