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O’Connor on Judicial Elections: ‘They’re Awful. I Hate Them’

Posted May 9, 2009 8:09 AM CDT
By James Podgers

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Warnings that judicial elections increasingly threaten to undermine the independence of courts were bookends for Friday's ABA summit on how to preserve fair and impartial state courts.

"I'm still resolute that how we select our judges is crucial to a fair and impartial judiciary," retired Associate Justice Sandra Day O'Connor told some 300 attendees during a keynote speech Friday morning at the summit in Charlotte, N.C.

"The public is growing increasingly skeptical of elected judges in particular," said O'Connor. She was referencing surveys showing that more than 70 percent of the public and more than a quarter of judges are considerably more distrustful of their judges than they have been in the past.

Warning of a snowball effect, she added, "Distrust of the judiciary in any jurisdiction becomes distrust of the judiciary in all jurisdictions." At risk is the perception by the public that judges are "just politicians in robes."

In her speech, O'Connor didn't come out explicitly against judicial elections, which are held in some form in 39 states. But afterward, she told the ABA Journal, "They're awful. I hate them."

Constitutional scholar Erwin Chemerinsky, now dean at the new University of California-Irvine law school, closed Friday's programming on a similar note.

Like O'Connor, Chemerinsky pointed to a pending case before the U.S. Supreme Court, Caperton v. Massey Coal Co., as an example of how even the appearance of impropriety in judicial elections threatens to undermine public confidence in the courts.

In Caperton, the losing party in a business dispute in West Virginia spent $3 million to support a candidate running for state supreme court. After the candidate was elected, he provided the deciding vote in a decision by the supreme court that overturned the lower court decision against his supporter. The newly elected justice also declined to recuse himself from the case.

"It just doesn’t look good," O'Connor said in her speech. "West Virginia cannot possibly benefit from having that much money injected into cases."

O'Connor declined to speculate on the outcome of Caperton, which the U.S. Supreme Court is expected to decide before its current term ends, but Chemerinsky predicted the justices will rule that the West Virginia Supreme Court's decision constituted a violation of due process.

Regardless of how the high court rules, Caperton has raised questions about what the boundaries should be for appropriate behavior for elected members of the judiciary.

Court decisions in recent years, such as the Supreme Court's 2002 ruling in Republican Party of Minnesota v. White, have given judges more flexibility to speak out on issues that may come before them on the bench, noted Chemerinsky. Moreover, contributions and spending on judicial campaigns are skyrocketing, he said.

"The very nature of judicial elections has changed in the last decade," he said, "and it has not been beneficial for judicial independence."

But Chemerinsky said efforts to eliminate judicial elections are probably futile. It probably is more realistic to seek tighter controls for judicial elections, such as limits on campaign spending, and behavior by judges once elected to the bench, such as taking recusal decisions out of their hands.

The summit, which is being sponsored by the ABA Presidential Commission on Fair and Impartial State Courts in cooperation with the National Center for State Courts, ends Saturday.

More Coverage:

ABAJournal.com: "Survey: Many Americans Today Would Get ‘F’ in Civics"

The BLT: "Summit in Charlotte Focuses on State Courts in Crisis"

ABA (news release): "Sandra Day O'Connor Cites State Budget Crises as Most Pressing Problem Confronting State Courts"

ABA Journal: "Caperton’s Coal: The battle over an Appalachian mine exposes a nasty vein in bench politics"

ABA Journal: "Mud and Money: Judicial Elections Turn to Big Bucks and Nasty Tactics"

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