Dispatch: Ohio justice won't hear cases as Senate weighs nomination

An announcement has been made that has potential and unknown implications for the Hamilton County lawsuit challenging the constitutionality of Ohio's concealed carry ban.

Justice Deborah Cook will not take part in any cases argued before the Ohio Supreme Court as the U.S. Senate takes up her nomination to a seat on the federal court of appeals in Cincinnati.

In a letter yesterday, Cook agreed to a recommendation by Chief Justice Thomas J. Moyer that she recuse herself from hearing cases until the Senate holds a floor vote. Moyer said that he would assign state judges to replace Cook during oral arguments.

Click here to read the entire Columbus Dispatch story (subscription site - paid access only). An archived version of the story follows.

Ohio justice won't hear cases as Senate weighs nomination
Tuesday, December 31, 2002
Jack Torry and Jonathan Riskind
THE COLUMBUS DISPATCH

WASHINGTON -- Justice Deborah Cook will not take part in any cases argued before the Ohio Supreme Court as the U.S. Senate takes up her nomination to a seat on the federal court of appeals in Cincinnati.

In a letter yesterday, Cook agreed to a recommendation by Chief Justice Thomas J. Moyer that she recuse herself from hearing cases until the Senate holds a floor vote. Moyer said that he would assign state judges to replace Cook during oral arguments.

Moyer has said that if Cook takes a seat on the federal bench, the Ohio Supreme Court might have to rehear cases that she participated in.

"I agree it would be prudent for visiting judges to sit in my stead on the merit cases for the coming weeks,'' Cook wrote to Moyer. She would still take part in procedural motions, including whether to accept future cases.

Moyer acted after aides to Sen. Mike DeWine, R-Ohio, advised him that the Senate Judiciary Committee has tentatively scheduled confirmation hearings for Jan. 14 for Cook and former Ohio solicitor Jeffrey S. Sutton. President Bush nominated Sutton and Cook to fill vacancies on the U.S. 6th Circuit Court of Appeals.

Although Moyer told Cook that the full Senate would confirm her in February, Mike Dawson, a spokesman for DeWine, would say only that the Senate "might'' confirm her by February. The Republicans hold a slim, two-seat margin in the new Senate, and Democrats can rely on procedural actions to delay any nomination.

Sutton and Cook have provoked intense opposition from a number of Democrats and their allies in some legal organizations in Washington. Outgoing Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., declined to hold hearings on the two nominations, even though Bush made them in May 2001.

With the Republicans regaining control of the chamber in the November elections, Sen. Orrin Hatch, R-Utah, the new chairman, has vowed to promptly hold hearings on many of Bush's judicial nominees.

It is not unusual for justices to recuse themselves from specific cases because of possible conflicts of interest. But this situation, in which a justice won't hear any cases for a protracted period of time, "hasn't happened in recent memory,'' said Jay Wuebbold, Ohio Supreme Court spokesman.

It costs taxpayers $50 per day to pay an "assigned judge'' to replace a sitting Ohio Supreme Court justice. Assigned judges, who typically are state appellate judges, normally hear a case and vote on the outcome but do not write opinions. There likely will be a number of different assigned judges needed to fill in for Cook, Wuebbold said.

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