Electing Judges

Does Justice O'Connor Have a Better Way? News this weekend that an anti-abortion, pro-gun, Christian group in California is targeting judges in the San Diego area comes hard on the heels of another tough contest - including independent expenditures - in Idaho for a seat on the Idaho Supreme Court. Retired U.S. Supreme Court Justice Sandra Day O'Connor has been speaking out and writing about the inherent problems associated with electing judges; something that most states do. O'Connor summarized the problem nicely in a recent New York Times Op-Ed: "Each state has its own method of choosing judges, from lifetime appointments to partisan elections. But judges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies." Speaking to a bar group in Chicago, O'Connor recalled a contentious 2004 race in Illinois that cost $9 million. "As you might have guessed," she said, "the winner of that race got his biggest contributions from a company that had an appeal pending before the Illinois Supreme Court. You like that?" O'Connor advocates a merit selection system and a retention election. "In a merit selection system, a nonpartisan nominating commission interviews and investigates applicants for judicial vacancies, and ultimately recommends a few candidates to the governor. The governor appoints one from the list. Regular 'retention' elections are held to allow voters to decide whether to keep the judge in office."

As a state legislator in Arizona before going to the Supreme Court, in 1974 O'Connor helped create Arizona's system of merit selection and retention. The respected Brennan Center at the New York University School of Law tracks judicial elections and reform efforts and the Center's Adam Skaggs said recently that O'Connor has it exactly right - politics and judges don't mix.

Strictly speaking, the Founders thought the same. Alexander Hamilton wrote in the Federalist Papers, "there is no liberty, if the power of judging be not separate from the legislative and executive powers.” The election of judges may soon get even more complicated thanks to the recent U.S. Supreme Court corporate contributions case Citizens United that was decided by a divided court on First Amendment grounds. Skaggs predicts, as did Justice John Paul Stevens in his dissent in the Citizens case, that more money will soon flow into judicial elections making it even more difficult for voters - and those with business before the courts - to see how judges are any different than politicians. As Justice Stevens noted in the Citizens case “concerns about the conduct of judicial elections have reached a fever pitch” and O’Connor predicts,“the problem of campaign contributions in judicial elections might get considerably worse and quite soon." A superb Frontline document a while back examined Justice for Sale, It was sobering and cautionary and for anyone who really cares about the independence of the courts viewing it will send a shiver down your spine. Justice O'Connor continues her trailblazing career and her thoughtful cautions are worth a careful listen.