By Ray Cooklis
The Cincinnati Enquirer

On Monday, Terrence O'Donnell will become the 149th person sworn in as a justice of the Ohio Supreme Court. He replaces Deborah Cook, who was confirmed by the U.S. Senate recently to the Cincinnati-based 6th U.S. Circuit Court of Appeals.

More important, his appointment to the seven-member court by Gov. Bob Taft cements what could be a significant change in the outlook of a court that has welcomed two new members in the past five months - but has four seats up for grabs next year.

O'Donnell joins a court that has had a contentious history in recent years - not only for close, high-profile decisions such as the DeRolph school funding case, but for election campaigns marred by big-budget attack ads and even for personal squabbles.

There have been questions about the justices' "collegiality" - how they get along with each other in a close-quarters world of clashing legal opinions.

But Thomas J. Moyer, the chief justice since 1987, says that's not the case these days. "Within this court, the atmosphere is very positive," he said. "There is a natural tension - after all, we are selecting cases in which we have strong opinions - but we find ways to diminish the tension."

The justices may not have the high public profiles, but what they do affects Ohioans' everyday lives directly in matters from school finance to auto insurance rates (see list of pending issues, right).

So who are these folks?

The accompanying mini-profiles show the court's new lineup, as of Monday:

• Five are Republicans, two are Democrats. They are endorsed and nominated in partisan primaries, yet run in the fall on an officially "non-partisan" ballot that's anything but.

• There are four men, three women - although until Cook left, the court for a few months had its first female majority in history.

• The average age is 59. All are white.

• All had previous experience as judges, although two came directly from other elective offices.

• As chief justice, Moyer makes $133,700 this year; the others receive $125,500 each.

Where they stand is a different matter. While all the justices say they decide cases fairly on the law and precedent, and that they avoid undue influence from outside interest groups, each justice's background, philosophy and even party affiliation are bound to play a role.

HIGH ON THE DOCKET

Important issues before the Ohio Supreme Court: • Concealed carry: Decision pending in the Cincinnati-based Klein vs. Leis case on the constitutionality of Ohio law concerning concealed carry of weapons • Death penalty: Looking at the guidelines concerning mental retardation of defendants in capital punishment cases, in light of U.S. Supreme Court's Atkins vs. Virginia decision in 2002 • Insurance law: Various cases on aspects of the court's controversial 1999 Scott-Pontzer decision regarding employees being covered by employers' auto insurance • Open records: Various cases on aspects of Ohio's law regarding access to public records • School finance: Consideration of legal jurisdiction in the decade-old DeRolph vs. State case (ruling announced Friday blocked Perry County Common Pleas Court Judge Linton Lewis from holding further proceedings in the case)

For the past several years, a four-member majority - Justices Alice Robie Resnick, Andrew Douglas, Francis Sweeney and Paul Pfeifer - has leaned toward positions favored by unions and trial lawyers in rulings on issues such as school funding and tort reform.

But the dynamics have changed. In last fall's election, then-Lt. Gov. Maureen O'Connor won the seat vacated by Douglas, who retired. While both are Republicans, Douglas tended to favor labor interests while O'Connor is seen to be aligned with the conservative, business-oriented Moyer and Justice Evelyn Stratton.

If O'Donnell follows a path similar to Cook, who was the court's most conservative, strict-constructionist justice, that could reverse the 4-3 split and produce decisions that could, for example, uphold the General Assembly's efforts at liability reform, which previous courts have found unconstitutional.

But the justices themselves would deny such speculation. "I'm just hoping to bring good balance to the court with my experience and training," O'Donnell said - although his comment that a justice's job is "interpreting law, not making law" sounds like a veiled criticism of the previous court's more "activist" rulings.

Among O'Donnell's new colleagues will be Resnick, who defeated him in 2000 in probably the nastiest campaign in Ohio Supreme Court history. An independent group's $4 million "Justice for Sale" ad campaign attacking Resnick is still the subject of legal action.

O'Donnell's still sensitive about how an outside group could "hijack" his campaign. So it's not surprising that one of his first phone calls after Taft chose him last Monday was to Resnick. "I really don't anticipate there will be a collegiality problem," O'Donnell said afterward.

Moyer predicted the court's good feelings "will continue. from what I've heard about Justice O'Donnell from those who know him, he is very collegial."

It hasn't always been such smooth sailing. In 1994, justices were accused of leaking the decision in a crucial workers compensation case, and of being pressured to change their votes. Then-Justice Craig Wright was investigated over alleged racial slurs in 1993.

Each Supreme Court election since 1996 has featured controversial independent campaign ad campaigns and accusations over campaign contributions to the justices.

And in 1991, Douglas and Wright got into a fight, reportedly over tee times at a golf club. "He hit me, and I hit the floor," Douglas later said.

Moyer said he's tried to break the tension in several ways, such as injecting self-deprecating humor into the daily conferences and encouraging informal lunch sessions.

Then there's his legendary method of randomly assigning the writing of opinions:

A black leather bottle, containing numbered tokens corresponding to the justices, is shaken and tipped. The token that comes out determines who in the majority will write the opinion. No exceptions. No case-swapping.

"It's a great system. It takes all the personalities and politics out of assigning," Moyer said.

The court meets in conference on Tuesdays and Wednesdays, every other week from mid-September to mid-June. Other days are filled with reading briefs, writing opinions and deciding hundreds of smaller issues, such as attorney discipline.

O'Donnell joins an exclusive club Monday, but "with his trial and appeals experience, I expect he will be a full participating member of the court very quickly," Moyer said.

He'd better be. O'Donnell will be up for a vote at the next general election (2004) to fill the rest of Cook's term, then must run again in 2006 for his own term if successful.

Next year's election could be the most momentous in decades for the Ohio Supreme Court, with four seats at stake - O'Donnell's, Moyer's, Pfeifer's, and an open seat being vacated by Sweeney's retirement.

"I know that it's a sacrifice, but I'm prepared," O'Donnell said. "I'm already campaigning."

Ray Cooklis is an editorial writer for the Enquirer. Phone 768-8525, e-mail rcooklis@enquirer.com.