In her keynote remarks, entitled “Choosing (and Recusing) Our State Court Justices Wisely”, delivered before the 2010 Georgetown Law–Aspen Institute Symposium Series held on January 26, 2010, retired US Supreme Court Associate Justice Sandra O’Connor made the following points on the issue of “the selection of state judges by popular elections rather than by some modified process, some of which American lawyers call merit-selection”, thus:
X x x.
X x x. The independence of our federal judges was critical to our Founding Fathers. …Two of the main grievances that our colonists listed against King George in the Declaration of Independence involved the absence of judicial independence in this country. The Declaration charged that the King had “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers” and he had “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” To safeguard against those abuses, the Founders ensured that our Constitution provides, federal judges anyway, with life tenure during good behavior and a salary which cannot be reduced during your office.
X x x. The Founders of our Nation saw fit to make federal judges independent of the other two branches—the two political branches—so that they would not be beholden to those two political branches in their subsequent interpretations as judges of the laws and the rights of the citizens. The Founders realized there has to be some place where being right is more important than being popular or powerful, and where fairness trumps strength. In our country, that place is supposed to be the courtroom. X x x.
X x x. In order to dispense the law without prejudice, judges have to be assured that they are not going to be subject to political retaliation for their judicial acts.
X x x. More than 80%, if you look across the country, of all state and local judges—and I guess that includes justices of the peace and the whole crew—80% have to win a political election to gain the office or to stay there. I suppose it’s not all that surprising because the polls today also show that a majority of Americans say they want to elect their judges—you ask them and they say “yes.” The point is that public support for judicial elections is a system of the weakening of judicial independence in this country, it’s not a reason for it. Voters in states that elect judges, we know, are also more cynical about the courts. They are more likely to believe that judges legislate from the bench. They are less likely to believe that judges are fair and impartial. And it’s this distrust of the judiciary that makes voters more inclined to elect their judges, rather than to look at another system of appointment. If you do not believe as a citizen, as a voter, that judges can be fair and impartial, you will want to select judges by a process that you believe will be most likely to result in a judge who is partial to you and to your views and can be unfair in your favor. If you think that judges legislate from the bench, then you are willing to invest a lot of money to try to get the “legislation” that you want. And if you are a litigant likely to appear before an elected judge, it makes sense to invest in that judge’s political campaign. So that’s where we are.
X x x. No state can possibly benefit from having that much money injected
into a judicial campaign; the appearance of bias is high and it destroys the
credibility of any judgment favoring political donors.
X x x. But tweaking campaign finance rules or recusal standards, while helpful, just treats the symptoms of mixing politics and the judiciary; it does nothing to address the underlying distrust that judicial campaigns … breed in the citizenry. X x x.
No amount of election or recusal reform will remove the politics inherent in partisan judicial elections because they are specifically designed to infuse politics into the law. Elections are intended to make our courts responsive to electoral politics, and that is the flaw in the concept. If judges are subject to regular and competitive elections, they cannot help being aware that if the public is not satisfied with the outcome in a particular case, often in some criminal case as you could imagine, it could hurt their reelection prospects. It’s like, as some have said, trying to ignore the alligator in the bathtub. Now, judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law’s restraints. So if our understanding or hope is that a judge’s constituency is the law, not the electorate, then it’s very hard to make that adjustment.
I think the threat to judicial independence is getting worse. More and more money is flowing into judicial campaigns. You heard some of that today. In 1980, Texas was the first state where the cost of a judicial race exceeded $1 million. That was considered a huge amount, but today it’s pretty pedestrian.
During this past election cycle more than $5 million was spent on a race for a single seat on the Supreme Court of Alabama. We have some here today from that state. Five years ago there was a race for the Illinois Supreme Court that cost just over $9 million. After that race, Illinois Justice Lloyd Karmeier wondered aloud “how people could have faith in the system” when such obscene amounts of money are used to influence the outcome of judicial elections. And he won the election! You can only imagine what the losing candidate had to say—you probably couldn’t repeat it here. Well, these funding arms races look like they’re going to get worse before it gets better.
X x x.
X x x. Judicial campaign spending has increased steadily despite the campaign finance laws that are currently in place. As of last week, I think twenty-four states place significant restrictions on corporate independent expenditures in state elections. .. I think, today, we can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election, and maybe tobacco firms and energy companies have enough to win the next one. And if both sides unleash their campaign spending arsenal without restrictions, then I think mutually assured destruction is probably the most likely outcome. Increasingly expensive and negative campaigns for judicial office erode both the judiciary’s impartiality and the public’s perception of that. The long-term business interests of campaign donors may suffer, despite the Supreme Court’s decision, and it probably is going to result, as some have suggested, in substantially increased disclosure rules.
As any game theorist will tell you, relying on parties to voluntarily restrict their campaign contributions is risky; and in an arms race, the incentive to deviate and be the only big spender is too great. It seems to me that the best way to stop the damage done by judicial elections is probably to go to a somewhat different system, and have states that haven’t done so yet at least take a look at a so-called merit-selection scheme. There are problems with any scheme that you might devise for selecting judges, and merit-selection systems have their own problems. Indeed, Missouri may modify or eliminate the system in Missouri, and that was the first state to adopt it. My home state of Arizona, with my help when I was a legislator, did go to a merit-selection system back in the 70s. And we’ve had to make a number of modifications in that system in the intervening years.
But I used to practice law in my home state of Arizona in front of trial judges,
and we had some that were truly an embarrassment to the state, and I’ve been
there long enough and observed the consequences long enough in my home state to tell you that going to the merit-selection scheme made an incredible difference in the quality of judges in that state. Now it involved setting up some kind of a formal committee to give advice to the governor on appointments, and I think West Virginia is tinkering with that, and that’s probably a good step.
In Arizona’s case, initially, we had quite a few lawyers on the commission. Today, we have very few lawyers on it—we’ve gone to a predominantly citizens commission—but the non-lawyer members are very well qualified and they can express themselves well, and it works okay. But at least we can say to the public this is not dominated by lawyers.
The other thing that has happened is that Arizona has opened all of their meetings of those advisory commissions to the public. They ask when there is a vacancy in a judicial office for people who are interested in being considered to file an application and include their resume—all of those are open to the public. If you have all the data open and the meetings open to the public and a predominance of lay people on the commission, there’s not a lot for the public to complain about in that system. And indeed it has produced some excellent judges. So, I think there’s no reason to think that states around the nation that still elect their judges shouldn’t take a look at what can be done, if they did so.
I think three states today may ask voters to take a look at such a system; one is Nevada, one is Ohio, and one is Minnesota. Now I don’t know if indeed all three will proceed—it looks like Nevada’s is already on the ballot, so we can expect that in that state—and maybe those states can serve as the vanguard for re-examination of elections more generally. As the dissenting Justices in the Caperton case noted, the political ramifications of our problem can probably only be remedied through systemic change.
X x x.
I think the opportunity to re-examine is now, and you here today are among the people who can best restore confidence in our judiciary. Many Americans do not yet recognize the importance of an impartial, fair, qualified judiciary and they don’t realize the threats to it imposed by judicial elections. The solution is simple: We have to tell people, we have to talk to them about this, we have educate them. What I mean by “we” is all of us—everyone in this audience—not just me. As lawyers and other public figures and students, you all are among the leaders in your communities, you really are. People will listen to you about the proper role of the judiciary, as long as you speak out clearly and firmly and through the channels that your listeners use. Your voices need to be heard.
Regardless of how we select our judges, I think maybe all of us can agree that an independent judiciary is critical to all our citizens. We really need that, we need that, as David Souter put it, “one safe place,” and that one safe place historically has been our courtrooms. Let’s not sacrifice that. You have to help us and speak out, and we can still have one safe place in our system for an independent, ualified judiciary. Thanks so much for being here today, and I hope you will maintain your interest in this subject and will be spokespeople in the future for what we need to do. X x x.
