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Portman Exit Could Usher in New Era for Ohio Judicial Screening

Oct. 20, 2021, 8:45 AM

Ohio Republican Rob Portman’s planned exit from the U.S. Senate puts in jeopardy more than a decade of bipartisan judicial screening that’s helped his home state get federal trial court judges confirmed no matter who is president.

The bipartisan commission used by Portman and Democrat Sherrod Brown helps explain, in part, why the state has been able to agree on judicial nominees. Under Biden, it is the first split-delegation state to have nominees in the pipeline.

In a state former President Donald Trump carried by eight points in 2020, Portman’s successor in the midterm elections is expected to come from the crowded field of more than a dozen Republican candidates.

Combative conservatives vying for the seat, like former Ohio Treasurer Josh Mandel and venture capitalist J.D. Vance, won’t necessarily be as inclined to work across the aisle when it comes to judicial nominations, those familiar with the state’s judicial screening said.

“I think as America gets more partisan it will be harder to do a bipartisan commission like this,” said Mark Weaver, partner at the Columbus office of Isaac Wiles, a former campaign adviser to Senator Portman, and a former member of the judicial nominating commission.

Ohio Commission

Partisanship over judicial confirmations has deepened in recent years, undercutting Senate customs built around collegiality. While circuit nominees no longer need support from home-state senators to advance, both must back district court picks.

Judicial screening commissions, like the one in Ohio, are a tool used by some senators to review candidates for district judgeships, and can vary in terms of size, membership, and responsibilities.

Bipartisan commissions are generally found in states with a history of split delegations or where seats frequently flip between parties, said Sarah Binder, a political science professor at George Washington University and senior fellow at the Brookings Institution. Senators in presidential swing states during presidential elections often find commissions valuable, Binder said.

“You never know who’s going to be in the majority for how long,” Binder said. “So the logic makes sense to me that the commission allows you to lock in a little bit of influence given the uncertainty about the future.”

Pennsylvania and Wisconsin are the only other states with a split Senate delegation that have current or expected vacancies. Both use bipartisan commissions. Like Ohio, Pennsylvania’s Republican Sen. Pat Toomey, will also be leaving his seat in 2022.

The Ohio commission was created by Brown and former Republican Sen. George Voinovich. The panel solicits applications, conduct background investigations, deliberates, and ultimately recommends candidates to the senators, Brown’s office said.

The final nominations are generally a product of negotiations between the senators and the White House.

Ohio’s most recent panel had 20 members, 11 Democrats and nine Republicans, according to Brown’s office. The group was mostly law partners, but also included professors, a public defender, and a voting rights activist.

In September, Biden named a batch of nominees for federal district courts in Ohio that both senators praised. The list reflected diversity prioritized by Biden, including federal public defender Charles Esque Fleming, who would be the second Black judge on the Northern District of Ohio; and Judge David Augustin Ruiz, who would be the Northern District’s first Hispanic.

Above Politics

Those who watch judicial nominations aren’t surprised by the collaborative relationship between Portman and Brown. “Brown is pretty liberal and Portman is pretty conservative, but he has a pragmatic streak to him,” Binder said.

On a call with reporters in October, Portman said the commission system—though sometimes “arduous and intense"—helps take some of the politics out of the process.

“We’ve consistently put the interests of Ohioans above partisan politics and try to get good people through the system,” Portman said.

Behind the scenes, the process is “not always as collegial as it looks” and the nominees are “more liberal than some of the people who I would have wanted,” Portman said. “But we’ve ended up with strong candidates who are qualified in the respect that they have the experience and the background temperament.”

As an outgoing senator, Portman seems to be “less constrained in choosing not to follow an obstructionist Republican line,” said Elliot Slotnick, a political science professor at Ohio State University who studies judicial politics. Portman might also be wary of what could happen with his replacement, Slotnick said.

“It wouldn’t surprise me if Portman, reading the tea leaves, recognizes that any vacancies not filled by the end of his tenure would likely not be filled during the second two years of the Biden administration as I can’t foresee either Vance or Mandel cooperating with Brown on submitting names for judgeships,” Slotnick said.

A spokeswoman for Brown said the senator “remains committed to working through a fair process in order to recommend qualified nominees that will serve the people of Ohio honorably and impartially. He hopes the person who serves after Senator Portman will be committed to the same principles.”

Potential Successors

While Trump focused heavily on judicial nominations in his 2020 reelection campaign, the issue hasn’t been prominent in Senate races now that Biden is in the White House.

Mandel, Vance, car dealership owner Bernie Moreno and former Ohio GOP Chair Jane Timken are focused more on cultural issues around Covid-19 masking and vaccine mandates. The four didn’t respond to requests for comment on how they would treat judicial nominations, and how judges would fit into how they intend to push back against the Biden administration.

Central Ohio businessman Mark Pukita, a long-shot Republican candidate, said he’s a “solid maybe” when it comes to using the commission in the future.

Another Republican contender Ohio state Sen. Matt Dolan, said he would continue the commission process, “due to its effectiveness in elevating the voice and counsel of qualified legal experts to fill Ohio’s judicial vacancies,” Dolan’s campaign spokesman Chris Pack said.

Weaver, the former Portman adviser who served on the Ohio judicial selection commission, is less sanguine. “It remains to be seen whether Rob Portman’s Republican replacement will play ball with Sherrod Brown the way Rob did,” Weaver said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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