Judges try hard not to be politicians. They wear robes meant to diminish preening. They write judicial opinions in the third person, to project a greater sense of independence. And they cultivate an image that floats above the sharp elbows of the sometimes-shabby political process.
But there’s something judges don’t want you to know. Many were political animals before taking the bench and they continue those instincts as they prowl the judicial branch. And unlike peanut butter and jelly, politics and judging are a bad combination.
As an attorney, I’ve advised numerous Ohio judges on questions of ethics and what’s legal for them to do in and around the political maelstrom. While I don’t reveal what clients tells me in confidence, I can say that nearly all of them are sensitive to how their decisions might affect their ability to achieve higher office. Most jurists are able to tune this political radar to its lowest setting and make decisions strictly based on the constitution and the law. But a few take the opposite approach and game the justice system for their own personal and political advantage
Consider exhibits A and B: Supreme Court Justice William O’Neill and Franklin County Appeals Court Judge Tim Horton. Both are currently drowning in the deep water of judicial misdeeds but still collecting their full salary from taxpayers.
Justice O’Neill has announced that he’s running for governor. That’s his right, but judicial ethics rules require candidates for non-judicial office to immediately step down from the bench. This ethical safeguard helps remove overt politics from court decisions. Nonetheless, O’Neill refuses to resign. He knows that the judicial discipline process grinds slowly and, by the time it ensnares him, he hopes to be the likely Democratic nominee and can simply resign then. Delay allows him to have his taxpayer-funded cake and eat it, too.
Judge Horton is running out the discipline clock in a different fashion. He’s already been convicted and served a jail sentence for mishandling campaign funds. A sitting judge sitting in jail is as rare as a Buckeye fan sleeping through game day. Judge Horton avoided more serious criminal liability by agreeing not to appeal his sentence. But then he appealed it anyway.
Judge Horton knows disciplinary authorities won’t begin to consider removing him from the bench until his underlying case – including all appeals – is over. By filing an appeal where the law didn’t allow it and after he had agreed not to, Judge Horton bought himself several more months of pay at a job that doesn’t even require daily attendance at the courthouse. Even then, the removal process will likely take many more months.
The Horton scandal first came to light in 2014, when he was scrutinized by fellow judges for serious allegations of sexual harassment. State investigators eventually recommended felony charges but the judge avoided them by admitting to some criminal behavior and accepting a misdemeanor conviction.
There’s something else these two unethical judges have in common – each defeated more qualified opponents because of the well-known nature of their last names. Justice O’Neill is unrelated to former Ohio Governor and Supreme Court Chief Justice William O’Neill but has enjoyed electoral success due to Ohioans’ familiarity with the moniker. Judge Horton doesn’t own any donut and coffee shops, but his initial campaign success was attributed by most observers to the fact that Tim Horton is a household name, and a yummy one at that.
There’s more than a Timbit of frustration in all this. Neither man ought to remain on the bench. Each is abusing the system to stay put. They use the slow process of the judicial ethics system to stiff-arm the interests of justice.
There’s a solution. Court rules need to be updated with an eye toward taking swifter action when there’s good evidence that a judge is abusing the extended due process of the system for little more than partisan or personal gain. When judicial officers act in clear defiance of ethical dictates, the power of suspension and removal should allow authorities to take action in weeks, not months or years.
Ohio voters historically have defended the system that allows judges to be elected rather than selected. But voters expect the rules that govern those judges to be equipped to take prompt action when a due process safety net for judges becomes a hammock for politicians in robes.
Mark R. Weaver is a litigation partner at the Columbus law firm Isaac Wiles. He was formerly the Deputy Attorney General of Ohio. He is the author of the book "A Wordsmith’s Work." Twitter: @MarkRWeaver.