Local Politics: Impeaching Justice Maureen O’Connor would threaten democracy

Ohio Republicans are openly debating the possibility of taking an extraordinary step that would undermine our system of government

Craig Calcaterra
Chief Justice Maureen O'Connor listens to oral arguments in League of Women Voters of Ohio, et al. vs. Ohio Redistricting Commission, et al. at the Ohio Supreme Court in Columbus, Ohio on December 8, 2021. The lawsuit is in regards to the recently redrawn congressional map, which has to be finalized before elections next year.

The Ohio Supreme Court told the Republican-led Ohio Redistricting Commission last week that it had to go back to the drawing board for the third time and make legislative maps that complied with Ohio law. 

Republicans' immediate response to taking yet another L? Calls to impeach the court’s Chief Justice, Maureen O’Connor. And it wasn't just random tweets from extremist legislators aimed at snagging some social media clout. Reports emerged late last week that at least one lawmaker planned to file impeachment charges against O'Connor, that there have been discussions about the matter among a number of Republicans in the legislature, and that "there is growing support for this move."

One might think it'd be unlikely for Republican legislators to impeach O’Connor, given that she, herself, is a Republican. But I doubt that's much of a problem for them. As Gov. Mike DeWine has learned over the past couple of years, having an R next to your name is no guarantee that other Republicans won't consider you a traitor to the cause for one reason or another. DeWine is being primaried right now because (a) a couple of years ago he suggested in the wake of a mass shooting that perhaps something should be done to make mass shootings less likely to occur; and (b) because for about six weeks he made good faith efforts to stop a deadly pandemic. 

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Even if the primary proves unsuccessful, DeWine was forced to cave in on even his modest beliefs regarding gun control and had a huge swath of his powers as governor curbed or taken away. And those things merely offended the sensibilities of Ohio Republicans. O'Connor declaring that districts gerrymandered to the GOP’s advantage violates the constitution, in contrast, directly threatens their power to bend the democratic process to their own end. In light of that, I question whether they'll even hesitate to remove her from office if they think they have the votes to do it.    

As for those votes: If there is a move for impeachment, it stands more than a puncher's chance of being successful. Impeachment of a judge requires support from 50 members of the Ohio House. Republicans currently control 64 of the 99 seats. Conviction in the Senate requires a two-thirds vote. There are 33 senators, 25 of whom are Republicans. Which is to say that, in both houses, there are votes to spare thanks in large part to past gerrymandering efforts. For what it's worth, eight judges have been impeached in Ohio history, only one of whom was convicted by the Senate, and that was for them shirking their responsibility by being absent without leave.

Playbooking the likelihood of success of an impeachment effort is beside the point, however. That's because the very act of moving to impeach O'Connor, even if unsuccessful, would be an extraordinary step. It would represent an undermining of norms that threatens the very foundations of our democratic system.

Handing down rulings with which legislators disagree is a feature of democratic government, not a bug. Indeed, our entire system of government, both at the federal and state level, is premised on the judiciary's ability to determine the constitutionality of legislative acts. That includes the determination of legislative districts which has been delegated to the Redistricting Commission by the General Assembly. If the Commission acts in an unconstitutional manner — which it has now done three straight times — it is not just the right of the Supreme Court to strike down that act, it is its duty. 

If the legislature were to misuse the power of impeachment in order to circumvent an undesired ruling from the court, it's hard to see how that would not be tantamount to a coup against the judiciary. A power grab not unlike that attempted by Donald Trump and 147 members of Congress when they sought to overturn the election on January 6, 2021. The common thread: If we don't like the outcome, we'll do whatever we can to change the process that produced it. 

For now, we wait. At present, the Redistricting Commission is back to work with a March 28 deadline to turn in a fourth and, hopefully, a constitutionally compliant map. It's even taking up O'Connor's suggestion to "retain an independent map drawer . . . to draft a plan through a transparent process" as a means of doing so. And, for what it's worth, DeWine is speaking out against the impeachment murmurs, saying, "I don’t think we want to go down [the impeachment] pathway because we disagree with a decision by a court."

Going through the motions of democracy, however, does not ensure a commitment to democracy, and relying on DeWine to prevent the Republican legislature's overreach is a sucker's game. This entire process is about Republicans trying to ensure and expand their power. Expecting them not to use every existing power at their disposal to do just that is wishful thinking.