As Retired Justice O'Connor Speaks Out Against the Problems Plaguing State Judicial Elections, the Supreme Court Still Refuses to Allow Reform

Since retiring from the Supreme Court, Justice Sandra Day O'Connor has traveled the country as a goodwill ambassador for the judiciary, promoting the virtues of an "independent" judicial branch and trying to tamp down the vituperative attacks against judges that have cropped up here and there around the country.

No one could be better suited for this role. As the first woman justice, O'Connor is an historic figure. And she is enormously popular in most quarters based on the widespread perception that, during her two decades as the Court's swing justice, she guided the Court along a sensibly moderate path.

There is much to be commended in O'Connor's enterprise. Courts play an enormously important role in interpreting and explaining our laws, protecting civil rights and civil liberties, and preventing the elected branches of government from overstepping their constitutional bounds. As O'Connor preaches, this vital role is jeopardized when we fail effectively to insulate judges from political attack and influence, or when legal decisions come to be viewed as grounded more in politics and or personal preference than in law.

In conducting this campaign, O'Connor has blazed something of a new path for retired justices, who usually just quietly fade away. O'Connor, by contrast, has chosen to use her high public standing and former position to become an agent for reform. As I will explain, however, in a rather bitter irony, she now finds her efforts hamstrung by the very colleagues she left behind.

O'Connor Important and Correct Message About States' Elected Judiciaries

For the most part, O'Connor has conducted her pro-judiciary campaign in speeches at law schools and bar events. Last Sunday, however, she reached out to a much broader audience by publishing an article in PARADE magazine, a staple in many weekend papers around the country. This piece nicely captured both the good and the less-than-perfect in O'Connor's message.

Starting with the positive, O'Connor rightly focused on the pernicious nature of judicial elections. As O'Connor observed, 95% of all cases are decided in state courts (rather than federal courts) and, in a significant number of states, judges are selected by popular election, rather than through the nomination and confirmation system by which federal judges reach the bench.

A tremendous amount of very important, high-dollar litigation takes place in state courts. Large class actions, insurance coverage cases, medical malpractice, toxic torts, products liability - indeed, most of the kinds of cases that gave rise to the debate over "tort reform" - are predominantly centered in state courts. State courts also have vast criminal jurisdiction.

With so much at stake, various interest groups -- from trial lawyers, to big business, to political associations of many stripes -- have come to take a deep interest in the composition of state courts. And, accordingly, they have begun to pour large amounts of money into key judicial elections. In one judicial election for a spot on the Illinois Supreme Court, the candidates raised more than $9 million.

As O'Connor emphasized, the injection of big-money political muscle into the picking of judges raises real concerns. In her words, "[W]hen so much money goes into influencing the outcome of a judicial election, it is hard to have faith that we are selecting judges who are fair and impartial."

O'Connor's Imperfect Solution to the Serious Problem She Isolates: Initial Merit Appointments Followed by an Up-or-Down Vote

The tough part, of course, is not diagnosing the problem, but figuring out how to solve it. In her article for PARADE, O'Connor says that if states insist on having partisan elections for judges, they should at least move to an election system that starts with merit selection, as Colorado's does. Under this approach, initial appointments to the bench would be made by a state's governor, based on the merit recommendation of a committee of eminent citizens. Judges would then sit for a few years, after which they would face an up-or-down vote of the electorate on whether they would keep their jobs.

To be sure, this would be an improvement on the current electoral free-for-alls. But there is always a danger in making judicial tenure dependent on electoral popularity. One of the most important jobs judges perform is to sometimes stand in the way of the popular will - to protect minorities from a tyranny of the majority, or to enforce state and federal constitutions, even when doing so is unpopular.

When judges have to stand for election to keep their jobs, it becomes all the harder to make these intrinsically difficult and courageous decisions. As O'Connor notes, attacks on judicial candidates are notorious for grossly distorting what actually happened in the cases being discussed. What judge wants to go out on a limb, knowing that public ridicule is sure to follow at election time? Being a judge is a difficult enough job. They should not have to be martyrs, too.

O'Connor's Former Colleagues Have Cut Off the Most Effective Path to Reforming Judicial Elections: Campaign Finance Reform

Unfortunately, the problem for O'Connor - and for all of us - is that her former colleagues on the Supreme Court have, at least for the moment, cut off the most obvious and effective way to curb the dangers associated with judicial elections: namely, campaign finance reform.

When she was on the Supreme Court, O'Connor generally found legislation aimed at curbing the influence of money in elections to be constitutional - and a slim majority was with her. (For example, she voted to uphold a federal ban on so-called "soft money" contributions).

But with O'Connor's replacement by Justice Samuel Alito, the tide has turned. The Court has now become extremely hostile to campaign finance reform, with a narrow majority viewing most efforts to limit financial expenditures on elections as violating the First Amendment's protections on free speech.

The result is to leave us with second-best solutions. One can tinker with the timing and nature of judicial elections - as O'Connor advocates. But in the end, judges will still face the unseemly and judgment-bending prospect of having to raise money from their campaigns and, if they make enemies (as most good judges do), they will find themselves the subject of ugly and potentially well-financed public attacks.

One gets the sense that O'Connor knows this. Whatever one thinks of her jurisprudence on the Court, she generally approached cases pragmatically - with an eye to common sense. And common sense tells us that the influence of big-time campaign contributions on elections - whether for judicial office or otherwise - corrodes our confidence in the fairness and impartiality of our government.

In short, in taking to the pages of PARADE, O'Connor surely meant to educate the general public about a threat to our courts. Perhaps a better audience, however, would have been the Justices she left behind upon entering private life.