The nation's first female justice made a passionate appeal for a review of Michigan's judicial election process to an audience of attorneys, students, judges and other court watchers February 9 at Wayne State University. She also managed to slip in a tribute to this year's Super Bowl champions.
Through her historical review, Justice O'Connor connected the dots from America's earliest days, when judges were appointed by governors, to today's patchwork of processes across the country.
"Every one of the original thirteen states had a system of appointment of judges by the governor of the states, with some kind of confirmation process," Justice O'Connor said, adding that changed when President Andrew Jackson was elected.
After pointing out that Jackson had saved the country in New Orleans, the esteemed jurist slipped in a "who dat?" for the New Orleans Saints, setting off a hearty round of laughter and applause. President Jackson tapped into the popular notion that too many political cronies were being rewarded, and worked to convince states they should elect judges, Justice O'Connor explained.
The balance of her keynote for Wayne State Law School's Options for an Independent Judiciary in Michigan symposium laid out a detailed case for examining the impact of imposing a highly politicized election process onto a judicial election that is constitutionally required to be non-partisan.
Court cases signal more trouble ahead in elections
Justice O'Connor cited the recent Citizens United vs Federal Election Commission Supreme Court decision regarding corporations and campaign finance, as well as an apparent use of campaign contributions to influence the judiciary in West Virginia, as bellwethers.
"States that still use the popular election process should probably take a second look at the system and whether it damages the judiciary in our democratic system," she said
In West Virginia, a corporate executive contributed $3 million to elect a state Supreme Court judge who eventually cast the deciding vote to overturn a $50 million judgment against him. Another decision in Minnesota overturned a restriction prohibiting judicial candidates from stating how they would rule on issues that came before them. The result: A blizzard of candidate questionnaires distributed by issues-based organizations informing voters which potential jurists might be counted on to support their positions.
"The Founders knew there had to be a place that was safe, where being right was far more important than being prominent or powerful. That place is supposed to be the courtroom," Justice O'Connor said.
Voting works against public trust in judiciary
Instead, voters in states with elected judges are actually less likely to consider the courtroom a safe place.
"Polls show people in states with elected judges have a distrust of the judiciary, which makes voters more likely to favor electing judges," Justice O'Connor said. "If you don't believe judges can be fair and impartial, you will more likely want to elect judges who are more partial to you and your way of thinking. You are more likely to spend money on judicial campaigns to influence the process."
It's a vicious cycle that pumps ever increasing amounts of money into judicial elections, which now routinely top the million-dollar mark. Justice O'Connor believes the only possible outcome for this political "arms race" is mutually assured destruction. As the rule of law degrades, she said, the long-term business interests of campaign donors suffer. "The best way to stop the damage done, in my opinion, is to stop the elections themselves."
Citing her home state of Arizona, which changed its constitution in 1974 to select judges based on merit appointments, Justice O'Connor said merit selection can be highly successful. A commission that includes citizens and attorneys reviews information and makes recommendations, in a process that is entirely open to the public. All information generated by the commission is posted on-line and in a printed document delivered to all voters.
She sees movement toward merit selection; Nevada has it on the ballot, Maryland is putting forward to a proposal to make all judges merit selected and Ohio is likely to have a system put before voters soon.
While some might feel that a system of appointed judges takes away voters' rights, Justice O'Connor argued that putting judges through a partisan election process defeats the idea that elections make the system more responsive. "If judges are subject to competitive elections, they must be aware of the public's reaction to their decisions. Judicial elections conflict with the promise that a judge's only constituency is the law," she said.
"The battle over how we select our judges is at the forefront of our fight for judicial indpenedence. (The) Caperton (decision) showed America how campaign contributions can destroy our system. Citizens United has signaled that the problem may get worse and very soon. The time to look at this is now," she said.
"There has to be one safe place in our government, and that safe space (the Founders) envisioned was in the courtroom, where decisions would be made based on the law, by people who were impartial and well-qualified," Justice O'Connor said.
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