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

Judiciary

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

Posted May 9, 2009 7:09 AM CST
By James Podgers

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"

Comments

1.

Robert
May 9, 2009 10:22 AM CST

Of course Justice O’Connor and judges in general hate judicial elections, it requires judges to be accountable. Appointed judges answer to no one and as a result do whatever “they” think is right. Omnipotence is not justice.

Flag this comment

2.

George Patsourakos
May 9, 2009 10:26 AM CST

Judges should not be elected—but should be appointed—in the United States. If an individual or corporation made a large financial contribution to a judge’s election campaign, that judge might rule in favor of that individual or corporation—even though it was an incorrect verdict—as a means of showing appreciation for that contribution. On the other hand, a judge who was appointed by a governor will be more objective in deciding a case, because that judge will not owe any favors to any individual or corporation.

Flag this comment

3.

George Sly
May 9, 2009 10:45 AM CST

Robert:  I respectfully disagree.  In New Jersey our judges are appointed by the Governor with the advise and consent of the state senate.  All judges are intially appointed to a seven year term.  If reappointed by the Governor, the judge has tenure until the mandatory retirement age of 70.  In addition our Governor’s are not permitted to just choose judge’s from their own party, they must alternate appointments between the parties.  Consequently for my state, we have achieved a moderate judiciary that does not have the wild swings we’ve seen in the federal courts lately, and we don’t have the problemn Justice O’Connor referred to of judges deciding cases based on who contributed to their campaign.

Flag this comment

4.

Robert
May 9, 2009 12:45 PM CST

Issues of election contributions from corporations can be legislated against, politics cannot. People being appointed to lifetime jobs that they neither deserve nor are competent to carry out to satisfy political favors puts citizens rights in jeopardy. How does a prosecutor, much less a defendant , get justice in front of a lifetime political appointment whose credentials don’t justify the job. How many times have we heard a judge justify a bad decision with “i just call ‘em as I see’em.”..or “I just call balls and strikes.” If the system that appoints judges weren’t so mired with corruption and political necessity I would agree that appointment would be best. But I just think elections gives the CITIZEN the best option at weeding out incompetency and bias. With appointment, the citizen is left with…well with a bad judge. Thanks for the replies, in no way do I mean to demean the many, many excellent jurists who carry out everyday the highest traditions of public service…both deservingly and with competence.

Flag this comment

5.

df
May 9, 2009 12:57 PM CST

There are, and should be, mechanisms for elected officials to remove appointed judges from office (e.g. federally, judges can be impeached). For politicians to be elected and re-elected - or not - based on their decisions, no problem. When you have a judge facing an election, how willing will he or she be to make e.g. Constitutionally-mandated but unpopular decisions? Especially in borderline cases, there may be no intent to decide wrongly but they’ll still make the decision to get re-elected, not the legally-correct one. “MIracle on 34th Street” (the original) has an amusing example of a judge facing re-election and the political advice he gets…

Flag this comment

6.

Jennifer Dacey
May 9, 2009 1:54 PM CST

Sandra Day is wise.

Flag this comment

7.

Evan Bertrand
May 9, 2009 3:08 PM CST

Why don’t they let this poor old lady alone?  She is retired and has to take care of her poor Alshiemer infected husband.

Flag this comment

8.

unperson
May 9, 2009 6:20 PM CST

What a surprise that one of our unelected kings in america hates the idea of locally elected, democratic justice. As Gomer Pyle would say, “Surprise, Surprise, Surprise!”

Flag this comment

9.

Undecided (JAG ACALWP)
May 11, 2009 4:15 PM CST

Judges are judges.
Whether elected or appointed, the quality of justice comes from the knowledge, character and integrity of the judge.
I witnessed an appointed judge simply refuse to follow the Rule of Law ... and he knew better.
The only way to stop him was his death. He unexpectedly died. Justice eventually returned to the bench.
I witnessed an elected judge who was worse. Death took him off the bench, unfortunately not until after he had put some litigants through pure Hades.
These two anomalies were exceptions, but they furnish support that the time is not ripe to retire Jefferson’s “Law,” that the tree of freedom is (watered, nourished, nurtured - verbs vary with the sources) by/with the blood pf tyrants. Society has been blessed with uncommonly wise judges, both appointed and elected.
2009-05-11-2 1814 -0400

Flag this comment

10.

Gary L. Zerman
May 13, 2009 9:31 AM CST

Both appointed and elected systems are lacking oversight and accountability; it is even more lacking after the guys/gals get on the bench.  USDC judge Samuel Kent?  Former Justice Sandra O’Connor does not tell you that appointments/confirmation of fed judges are back room brokered political deals, where the Senate Judiciary Committee does not allow witnesses at the confirmation hearings for district and appellate positions (except the nominee and senate staff) thus citizens are excluded from their own gov’t making the hearing a cruel charade.  (See www.judgewatch.org “Disruption of Congress” case, where a citizen attempt to respectfully excercise 1st Amendment rights of Petition & Speech by politely asking to testify resulted in 6-months in the DC Jail.)  Yet watch the senators primp and preen for the television cameras on high court nominees, telling us how they uphold the Constitution and protect our rights.

Further, impeachment is DEAD.  Over 99%  of misconduct complaints against of fed judges year-in-year go nowhere because they are overseen by - other fed judges.  Search Sam Kent, Nottingham, Porteus and Real.

Further, O’Connor did not telll you about the dastardly and despicable doctrine of absolute judicial immunity, which covers even corrupt and malicious acts.  See Stump v.Sparkman, 435 U.S. 349 (1978) and note there is no constitutional basis/authority cited for the bogus doctrine and also that it comes from judges, thus it flies in the face of the doctrine of separation of powers - the so-called checks & balances.

Finally, this country was founded on representation - we now have more federal judges than representatives.

Flag this comment

11.

Ian
May 15, 2009 1:52 AM CST

@Robert: I just think elections gives the CITIZEN the best option at weeding out incompetency and bias.

The trouble with this is that elections are not supposed to weed out bias, but to reflect it.  We vote for the policy we want, not necessarily the policy that is just.  The judicial branch is supposed to be the check/balance against popular will; an election would have that branch merely reflect it in the same fashion as the other two branches already do, and that is not the rule of law at all.

Flag this comment

12.

John T. Hammond, Circuit Judge, retired
May 15, 2009 8:52 AM CST

Justice O’Connor is right that elections are Hell for the candidates, and nothing is worse than a partisan judicial election.  That said, Isuggest that non-partisan judicial elections are the best choice for the people.  The idea that some appointing (or nominating) person or body is all-wise, all-knowing, fair and just, and always unswayed by improper or partisan motives is theory divorced from reality or experience.  If the pubic ever gives up the right to vote judges in, or out, they never get it back.  Caperton represents an aberation that should be corrected, but having to face the voters every few years induces humility that some judges sorely need.

Flag this comment

13.

Robert Hanseman
May 15, 2009 9:10 AM CST

Judge’s should be elected because the courts have vastly overstepped their boundaries.  For instance, the Supreme Court of California is currently contemplating whether a constitutional amendment is (banning gay marriage) is itself, constitutiuonal. 

If they can void an amendment passed by the people, they can do anything.  That’s not a judiciary, that’s a dictatorship, so the more control the “body politic” has over the judges, the better.

Flag this comment

14.

Conservative
May 16, 2009 11:21 AM CST

Honestly, both election and appointment of judicial officers each have their own different problems and benefits, as does the choice of tenure in office be it lifetime or a term of years.  However, it might be possible in state systems to make use of the benefits of each system while reducing to a minimum their problematic components.

If the “appointments” political process were used to attempt to select a suitably qualified candidate who then was required to stand for a “yes - no” vote of the people to make sure that the candidate was acceptable to the general citizenry, perhaps a better system could be devised.  At the same time, such judicial officer should then be subjected periodically (say every seven - ten years) to another yes or no vote running without opposition from another candidate for the job.  Thus, a judge who was obviously evil or out of step could be eliminated via either impeachment or some other form of state removal process, or simply by losing his bid for reelection.  At the same time, at least some of the evils associated with partisan campaigns would be avoided, and those contributing to the pro or con votes could be publically disclosed.

Flag this comment

15.

ironstone
May 17, 2009 11:01 PM CST

There are problems in appointing judges and electing judges.  In New Jersey judges are appointed.  It is a political process without public review.  I have been before judges who clearly either do not know the law, or abuse the law.  Many judges in NJ are vindictive, and clearly are not suited.  they lack a judicial temperament, and after seven years, the majority are reappointed without any opposition. 
  In New York, the political parties in back rooms appear to approve judges.  This too, leaves many qualified but unaffiliated candidates out of the system.  I sometimes wonder about both appointed and elected judges. 
    I really do not care which is used.  However, I would take any ethics complaints and mechanism away from other judges or any lawyers.  Judges and lawyers should only be in the review process to inform members of the public who should both investigate and review complaints against members of the legal profession and the judiciary. 
    I thought that happened in California but the Cal Supreme Court interpreted the referendum in a way not consistent or in favor of public review.

Flag this comment

16.

Gayle Graziano
May 18, 2009 10:50 AM CST

The appointive process is much more political than the elective process—-but only the few power brokers get to choose, not the electorate.  This usually results in the best judiciary that money can buy.  Just look at Florida’s judiciary appointed during Jeb Bush’s term as governor and his campaign contribution lists.  Furthermore, by relying on the apointive process we get silk stocking, wealthy lawyers who rarely have any experience with the middle class or lower class problems.  They have no idea what the general public seeks in their judiciary—-fairness and justice regardless of financial ability, job status or lifestyle.

Flag this comment

17.

B Cardozo
May 18, 2009 3:09 PM CST

The (NY) electoral system gave us Benjamin Cardozo.  The appointment system gave us David Souter.  So elections can’t be all bad.

Flag this comment

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting has expired on this post.