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Political Note #296   Ohio Supreme Court:  John O’Donnell and Jennifer Brunner

2020                            General election

The election of state supreme court judges is important.  We had one election in April.  Democrat Jill Karofsky’s election upset reduced Wisconsin’s Republican majority in the court from 5-2 to 4-3.  And one of the Republicans is not a reliable Republican vote.

There is a tension between judiciousness and political views for every judge.  Most of us remember now Chief Justice John Roberts* of the US Supreme Court explaining that his role would be like a baseball umpire. He said judges don’t make the rules, they apply them.  He meant, it seemed, that he understood the strike zone and would call balls and strikes according to what was in or outside of the strike zone. He would not create a new strike zone.

What do people think now about Chief Justice Roberts’ analogy? Has he made a few new rules?   Was he willing to deprive women of health insurance that included contraception?  Was he willing to even call the balls and strikes about gerrymandering by political parties?  Or did he decide to stay out of that game?

State courts deal with momentous issues.  Issues that are at the core of our democracy.  How may the state legislature regulate who is eligible to vote?  When the legislature develops boundaries for state legislatures, for Congress, are they creating the boundaries in ways that are consistent with the requirements of the state constitution?  When the state legislature creates a statute that governs the formation of district boundaries, is the body created by legislative action permissible under the state constitution?

State courts deal with momentous issues.  Issues that are at the core of our existence as human beings.  Does the state constitution allow the legislature to regulate when and under what circumstances a woman must carry a child to term.  Do women have authority over their own body?  Or not?  When local and state police public safety work leads to disproportionate numbers of killings of members of a particular ethnic group, is that police behavior permissible under the state constitution?

These are not intended as political questions. How a judge answers those questions; how a judge reads the state constitution is a product of his or her world view.  Nothing a judge does (or any of the rest of us, for that matter) is entirely neutral.  Had the Senators who questioned John Roberts been in a contentious mood, they might have noted that students of baseball understand that umpires have different strike zones for calling balls and strikes.  Umpires differ in where the upper and lower limits of the strike zone is; how far inside or outside the strike zone goes. Baseball analysts see individual umpires changing their strike zone from game to game or even, especially when the home plate umpire is in a hurry to get home from a lopsided game, during the last few innings.

For judges in high courts, their world view encompasses their political party and the judgments they make.  They are not serving their political party when they make a judgment.  They are serving justice as they see it.

Ohio achieves that complicated balance in an unusual way.  Judges run for election in political party primaries.  Therefore, judges identify themselves early in the process as Republicans or Democrats or members of some other party.  In the general election, the winners of those partisan primaries are on the ballot.  On the general election ballot, the judicial candidates are not identified by party.

The Ohio primaries are over.  We know who the Democratic and Republican candidates for the Ohio Supreme Court are even if they will not be identified by party on the general election ballot. We also know that Republicans currently hold a 5-2 advantage on the Ohio Supreme Court. Two seats on the Ohio Supreme Court are being contested in November.  Both of those seats are held by Republicans.  If Democrats win both of those seats, the Ohio Supreme Court will shift to having a 4-3 advantage for Democrats.  The term of office for the Ohio Supreme Court is eight years.  The 4-3 advantage will not necessarily last for those eight years.  Other seats will be up for election in future years.

Democrat John P. O’Donnell a judge of the Cuyahoga County (Cleveland) Court is running for a Supreme Court seat held by Sharon Kennedy.

Democrat Jennifer L. Brunner, a judge in a District Court of Appeals is running for a Supreme Court seat held by Judith French

John P. O’Donnell https://odonnellforjustice.com is a local.  He went to St. Joseph’s High School in Cleveland and Miami of Ohio University in Oxford.  He graduated from the Cleveland-Marshall School of Law.  He’s married.  He and his wife have five children and live in Lakewood, a western suburb of Cleveland.  He has had a special charge to preside over business and commercial litigation in addition to the usual civil and felony criminal cases.  He has had a special charge to preside over felony cases whose defendants had serious mental illness.  Before becoming a trial judge, he was a partner at Lyons and O’Donnell and a Lake County prosecutor.

On the issue of politics and judicial decision-making, he has been critical of the Trump administration for seeking out party and ideological stalwarts.  He told Ottowa County Democrats “Our laws must be constitutional, but the present administration encourages appointing judges that follow its agenda, not the law.  Voters must not be told they’re getting judges who will rule the way their party wants them to vote.”  He added “Whether you like a piece of legislation or a policy, if it is not constitutional, it doesn’t matter whether I or my colleagues on the bench are Democrats or Republicans. We have to perform our function. These days, the independence of the court is getting lost.”

John P. O’Donnell is running against Incumbent Judge Sharon Kennedy.  Judge Kennedy is also local – at the other end of the state.  She graduated from Northwest High School in Hamilton County (Cincinnati) and has a BA and JD from the University of Cincinnati.  She is unmarried and lives in Butler County not far from Cincinnati.   In private practice, she represented police officers in disciplinary hearings, worked for the Ohio Attorney General and the Courts.  She was an administrative judge for domestic relations, was appointed to the Ohio Supreme Court in the spring of 2012, defeated a Democratic incumbent in November for an eight-year term.

On issues of ideology and judicial decision making, she told high school students about the Ohio Supreme Court in the 1990s: “They were rewriting the law. We were at a time in our lives in Ohio when businesses left, and we had experienced ‘white coat’ flight – doctors left, they just couldn’t live in this world, so they went anywhere else but here. What the newspapers all wrote was that four people decided they were a super legislative body and they were rewriting the laws instead of honoring their limited roles in government.”

Jennifer L. Brunner https://www.judgebrunner.com was born in Springfield, Ohio and grew up near Columbus.  She graduated from Whetstone High School.  She is a graduate of Miami of Ohio and earned her JD at Capital University Law School. She and her husband still live in the Columbus areas.  They have three grown children and have been foster parents to three more

The pivotal position in her career was her term as Ohio Secretary of State.  Her earliest work was as the Secretary of State’s office’s Deputy Director and Legislative Counsel to the Ohio General Assembly.  She became an expert in election law and much of her subsequent practice, though certainly not all of it, was devoted to election issues.  With her firm, Brunner, Kirby, & Jeffries, Jennifer Brunner  became well known as an advocate for voting rights.

In 2000, Jennifer Brunner was elected to complete an unexpired term of the Franklin County (Columbus) Court of Common Pleas and was reelected in 2002.  In 2006, she resigned to run for Secretary of State, to which she was elected.  Her advocacy for replacing electronic voting machines which kept no paper records as well as other efforts to ensure more and fairer voting earned her a Profiles in Courage Award.

Instead of running for a second term in 2010, Jennifer Brunner announced a run for the open Republican US Senate seat.  She lost that race in the primary to Lt. Governor Lee Fisher, who in turn lost the general election to Republican Rob Portman.

Jennifer Brunner’s renown as an election expert led her to serving as a consultant to USAID which was, in turn, consulting with Serbia as it sought to gain publc confidence in its election system.  She served as an international election observer in for Egypt’s constitutional referendum.  And she served as a Member of the Board of Advisors of the Global Panel Foundation, which worked in conflict areas throughout the world.

In 2014, she was elected to and still serves on Ohio’s Tenth District Court of Appeals.  If she is elected to the Ohio Supreme Court, she will be a knowledgeable voice for equitable election policies from voting rights to gerrymandering.

Jennifer Brunner is running against incumbent Justice Judith French.  French describes herself as the daughter of a schoolteacher and proud of her Ohio roots.  The grew up in rural Sebring, Ohio, graduated from Sebring McKinley High School and received three degrees from The Ohio State University – BA, MA in military history, and the JD.  She and her husband, also a judge, live near Columbus and have two children.

French’s early work was for Ohio’s EPA and in the state Attorney General’s office.  She was chief legal counsel for Governor Bob Taft, was elected to the Tenth District Court of Appeals in 2004, and appointed to the Ohio Supreme Court to fill a vacancy in 2012. She has an interest in education and has worked with legal-aid organizations to increase access to the court system.

We have had a lesson on the federal level about the importance of judges.  Mitch McConnell has tried to shape the future by getting judges appointed by a Republican President and confirmed by a Republican Senate.  Do not underestimate the importance of the election of judges in Ohio in 2020.  If both Democrats are elected, they will shape the future of Ohio and, through their decisions on gerrymandering, the future of the country.

Give some serious thought to supporting these two candidates.  Give money as well as thought.  Give to John P. O’Donnell https://odonnellforjustice.com  and to Jennifer L. Brunner https://www.judgebrunner.com  You can make a difference.

Judicial Elections

In Wisconsin, Jill Karofsky won an upset victory to the Wisconsin Supreme Court in April.  That election reduced the Republican majority from 5-2 to 4-3.

There will be state supreme court elections in Michigan, North Carolina, and Texas, elections worth following, prospective judges worth supporting.  I will follow up.

 *This note corrected to fix an egregious error on my cart about Justice Roberts.