O’Connor: Want a Qualified, Impartial Judiciary? Don’t Use Contested Elections

It’s not difficult for retired Justice Sandra Day O’Connor to find examples of the problems caused by big money and contested judicial elections.

O’Connor tells the ABA Journal it’s time for states with contested, campaign-funded elections to take another look at their systems. She points to a recent ruling by the U.S. Supreme Court and a novel by another well-known legal name to illustrate the problems.

Have you read John Grisham’s novel on judicial campaigns? O’Connor asked the ABA Journal. Because we should have. The story in The Appeal—about a chemical company trying to influence an appeal by spending millions of dollars in a judicial election—is the kind of thing that is playing out across the country in states that elect judges.

“It’s really frightening,” she said. She spoke about the appearance of influence and the erosion of public confidence caused by contested judicial elections funded by millions of dollars in contributions.

“What the people need and want at the end of the day is a fair and impartial judiciary, one that’s qualified, fair and impartial,” O’Connor said. “It is much more difficult to achieve that by using popular campaign-funded elections.”

O’Connor also points to a real-life case involving a West Virginia Supreme Court justice who was elected with the help of more than $3 million in contributions from a coal mining executive. The West Virginia justice refused to recuse himself in a case involving the executive’s company. The U.S. Supreme Court ruled last June in Caperton v. A. T. Massey Coal Co. that due process required recusal.

“The question is one of perception,” O’Connor said. “What does the public think when that happens? Does it give an appearance at least that there might not have been a fair and impartial judge sitting on the case? That is the concern.”

The interview was arranged by the Institute for the Advancement of the American Legal System, a University of Denver group promoting a new “O’Connor Judicial Selection Initiative” to promote a merit selection system for judges that includes retention elections.

O’Connor is chairing an advisory committee for the IAALS whose members include the group’s executive director, retired Colorado Supreme Court Justice Rebecca Love Kourlis; and former ABA President H. Thomas Wells Jr. The advisory committee adopted a strategic plan this week supporting the institute’s merit selection push, Kourlis told the ABA Journal.

“We are announcing today a new initiative under Justice O’Connor’s leadership that will be very action-oriented in trying to help states that are in a position to move toward selection of judges and away from election of judges,” Kourlis said.

Kourlis told the ABA Journal that a pending Supreme Court ruling in Citizens United v. Federal Election Commission could “exacerbate the problem” of corporate spending in judicial elections if it strikes down curbs on corporate spending.

Citizens United considers the constitutionality of a federal law restricting corporate spending on issue ads before elections; a broad ruling could strike down an O’Connor decision upholding campaign finance restrictions.

We asked O’Connor if a ruling striking down corporate restrictions could mean a flood of additional corporate money into judicial races. But O’Connor wouldn’t go there. Corporate money, she said, is already a problem in judicial elections.

“There is plenty to worry about as it is,” O’Connor said. “You don’t need another case to create the worry.”

O’Connor says the merit selection system used in her home state of Arizona has worked well, and she hopes to see increased public interest in moving away from judicial elections. Voters in Nevada are considering a constitutional amendment next November that would adopt an appointment process and retention elections, she says.

Meanwhile, there is a move in Missouri and Tennessee to retreat from merit selection of judges. Says Kourlis: “This is an issue that bubbles to the fore in a lot of different states. What we intend to do is to focus our energies and activities in states where we can make a difference.”

The IAALS advocates these “best practices” in selection systems:

• Politically balanced nominating commissions with a majority of nonlawyer members making recommendations in a transparent process.

• Appointments by the governor, who must select judges from lists provided by the nominating commissions.

• Comprehensive judicial performance evaluations that are based on criteria such as command of the law, impartiality and temperament.

• Retention elections, so that voters armed with the performance evaluations can decide whether to keep the judges on the bench.

• Terms of office that are initially only two to three years in length, so that there is sufficient data about judicial performance before the retention elections.

• Judicial training.

Related coverage:

Associated Press: “Justices making new push to abolish elected judges”

Blog of Legal Times: “O’Connor to Helps Launch New Initiative Against Judicial Elections”

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

Updated at 3:38 p.m. to change a quote from Justice O’Connor.

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