COLUMBUS, Ohio — Three Republican candidates for the Ohio Supreme Court are being accused by pro-choice advocates and nonpartisan lawyers of lacking impartiality after the candidates shared their thoughts on abortion with a political action committee while campaigning.
In documents obtained by News 5, GOP candidates and current justices Sharon Kennedy, Pat DeWine and Pat Fischer agreed in judicial candidate surveys that were conducted by Cincinnati Right to Life back in March that the Constitution does not include the right to abortion.
In the past, when News 5 asked the justices about certain topics, the justices told News 5 they couldn’t answer some questions, stating they are not allowed to comment on pending cases.
"We're not allowed to comment on cases that are pending in front of our court or in any other court," Justice DeWine said.
But they did let their views be known on abortion while on the campaign trail, which could also very likely come before the court — especially as a state judge blocked Ohio's 6-week abortion ban indefinitely on Friday.
Among those who've raised concerns over the answers are Pro Choice Ohio and Equality Ohio.
"It demonstrates that you are not upholding the integrity of the legal system and administering the courts in a fair and impartial way," said Dr. Tracy Pearson, an ethics and bias lawyer.
These surveys are typically used when organizations are deciding on endorsements for candidates who typically will represent and fight for their values. Although the documents are from March, numerous abortion bills were being heard at the Statehouse, and the Supreme Court was evaluating the Dobbs case.
"In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court recognized a “right to privacy” under the Constitution that includes abortion. The Constitution does not include this right," Right to Life wrote in their survey, prompting a response. Each Justice wrote that they agreed.
Pearson said the justices broke the Ohio Code of Judicial Conduct by giving their opinion on a topic that is likely to head to the court while they are presiding.
"What you've done is you've made almost a campaign promise," she added. "You've made an implicit promise."
Constitutional law professor Jonathan Entin says there is some gray area because the justices do have the First Amendment on their side, although they need to be cautious of a provision that warns against saying anything that could be seen as biased in questionnaires.
"An unborn child is biologically human at every stage of his or her biological development, beginning at fertilization," the survey stated, prompting a response. Each justice wrote agree, again.
The Ohio Code of Judicial Conduct states that the judge must promote the independence, integrity and impartiality of the judiciary and "shall avoid impropriety and the appearance of impropriety."
"Judicial candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way," the code states. "To avoid violating division (A)(6), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected."
"That may be in the eye of the beholder," Entin said. "That might undermine the justice's ability to decide a case impartially."
A spokesperson for the justices said: "The questionnaire does not ask any questions about the justices’ views on abortion laws or how they would decide a particular case... Without question, the Republican candidates for Justice will not be influenced by any particular endorsement."
"They're saying, 'I didn't say how I was going to decide this very specific case,'" Pearson said. "That is too cute by half. We know how they're likely to rule, where there is a losing party, and they know it walking into the courtroom."
Entin says the justices aren’t breaking the law by giving their opinion but rather are opening themselves up for calls for recusal or motions to be disqualified. Both of these processes are very difficult to accomplish since the justice gets to decide if they want to step down.
Although not abortion-related, the justices also answered questions about same-sex marriage.
"The judiciary does not possess the authority to expand the definition of marriage to include anything but one man and one woman," the survey said.
The responses:
"The Courts are not legislatures," Fischer responded. "Legislation is passed by the General Assembly and signed by the Governor."
"In our system, the judiciary doesn’t possess the power to make or expand ANY laws," DeWine said. "The people and their elected representatives create laws; the job of the judiciary is to interpret and apply the law as written."
"The judicial branch is charged with stating what the law is," Kennedy said.
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