Annual Meeting 2011

O'Connor: Lawyers & Judges Need to Wake Up to Judicial Funding Threat, Prep for Political Battle

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Retired U.S. Supreme Court Justice Sandra Day O’Connor expressed concern Sunday that not even lawyers and members of the judiciary fully recognize the threat to state courts posed by funding cutbacks being imposed by state legislatures.

“No one, not even lawyers and judges, understands what a financial bind the courts are in,” said O’Connor in a brief interview with the ABA Journal following a program on the current crisis in court funding. As a result, she said, “They’re not ready for the political fights” that may be necessary to assure that legislatures fund the courts at adequate levels. “We have to wake them up.”

O’Connor was one of the panelists at the program sponsored by the Office of the President. Stephen N. Zack of Miami appointed the Task Force on Preservation of the Justice System a year ago when he began his term as ABA president. The panel also included the task force’s co-chairs, David Boies of Armonk, N.Y., and Theodore B. Olson of Washington, D.C.

The nearly 70 people attending the program, held in Toronto during the ABA’s 2011 Annual Meeting, needed no convincing that the financial threat to the state courts is very real. “The first thing we have to recognize is that we really are in a crisis,” said Boies, the founder and chairman of Boies, Schiller & Flexner. (Zack is a partner in the firm’s Miami office.) “And second, that it’s taken a while to get here.”

Taking the crisis as a given, the program in effect turned into a strategy session on how to convince legislatures to treat funding for the courts as a priority even during recessionary times. And O’Connor–who served as majority leader of the Arizona Senate before embarking on her judicial career–had plenty of suggestions on how to do that.

First, she said, “We need advocacy on this issue by lawyers at all levels.” And those advocates need to have access to legislative leaders on both sides of the aisle through one-on-one meetings. It also will help to bring members of the business community into the effort, because legislators will listen to what they say,” she said.

Public hearings can play an important role in advocacy efforts, said O’Connor. Legislators should know about them, and media coverage should be encouraged. And while facts and figures are important, she said, “Make sure to drop in some sob stories.”

Finally, said O’Connor, “If things get really bad, buy some beer and Mexican food, and have them all over.”

Other speakers pretty much endorsed O’Connor’s suggested tactics. Grassroots efforts will be vital, said Boies. After all, he noted, “This is politics, and all politics is local.”

Urging more involvement in the issue by bar associations, lawyers and members of the judiciary is the gist of a recommendation from the Preservation Task Force that will be considered by the ABA House of Delegates, which convenes a two-day session on Monday. The measure calls for those groups to document the impact of funding cutbacks on the courts, create coalitions to advocate for adequate funding and urge legislatures to make preservation of the courts a priority.

“This issue will require commitment, patience and persistence,” said Olson, a former U.S. solicitor general who is a partner at Gibson, Dunn & Crutcher. “It’s going to take a long time, and we can’t be summertime soldiers.”

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