Retired Supreme Court Justice Sandra Day O'Connor
encouraged her staff to enjoy whitewater rafting, Mexican take-out brunch and
tours of the Smithsonian. Justice Stephen Breyer loves to read French
manuscripts and cultivated his distaste for footnotes during his clerkship to
Arthur Goldberg. Such details were plentiful as Professor John Feerick
introduced Justice O'Connor and her former colleague Justice Breyer to a
well-heeled audience of lawyers and law students at Fordham Law School yesterday
The two justices, and co-hosts of the day's
symposium, sat together at a small table
for their introductory panel, "Judicial Independence and Impartiality." Sandra
Day O'Connor, dressed in a violet suit with gold buttons, her blonde hair now a
shock of snowy white, frowned as she tried to twist the top off her water
bottle, then leaned over towards Breyer and held it out to him. He wordlessly
took it, unscrewed the top, and handed it back.
Sally Rider, Director of the William Rehnquist Center at the
University of Arizona, kicked things off with a series of questions. Why, she
asked O'Connor, did she decide to convene this conference on judicial
independence in the first place?
O'Connor said she remembered seeing "Impeach
Earl Warren" signs in New Mexico and Arizona when she was growing up, and said
that in her final years on the Supreme Court, attacks on judges increased,
including proposals for mass impeachments of judges involved in the Terri
Schiavo case, or proposals to cut judicial terms short, or a particularly
disconcerting movement towards "Jail4Judges," a campaign to allow citizen panels to review rulings
from the bench, with the ability to even imprison—as the name tantalizingly
implies—those who made bad decisions. These developments were "very depressing,"
she said, and so she decided to use her retirement to call attention to these
attacks on judges.
"An independent judiciary is an essential bedrock
principle, and we're losing it." The reason was in part the fact that
civics and government are not a requirement for high school graduation. "One
third of Americans can't name the three branches of government, but two thirds
can name a judge on American Idol!"
Money has been pouring in to state judicial
elections in recent years, including races for State Supreme Court justices.
A 2004 campaign for a seat on the
Illinois Supreme Court brought in a record-setting $9.3 million in political
contributions, including hundreds of thousands of dollars from State Farm, a
company with a case pending before the court. And just recently, Wisconsin
voters were subjected to over 11,000 televised campaign ads
in the weeks before their state's Supreme Court race, over
ninety percent of which were purchased by special interest groups (racking up a
bill of well over 3.6 million dollars). Said O'Connor, "We put cash in
the courtrooms, and it's just wrong." She then pointed to the room of lawyers
and students. "You should take this seriously." (A later panel backed up
O'Connor's concerns. New York Times legal correspondent Adam Liptak,
Brennan Center attorney James Sample and Professor Michael
Dimino discussed evidence that
judges tend to rule in favor of their campaign contributors.)
She went on. "No other nation in the world elects
judges." She pointed to Georgina Woods, the chief justice of Ghana, sitting in
the front row, as if to illustrate her point.
"Why are we tolerating this? What are we going to
do about it?" Then, seeming to remember that the initial question posed to her
several minutes before was "why did you convene this conference," she added,
"That's why," and sat back in her chair. The audience laughed and applauded.
Breyer took the floor next. Keeping state courts
impartial is a major issue, but try talking about it with people "and they're
asleep after five minutes." He recounted a trip to Russia he had made when
serving as an appellate judge for the First Circuit after he was appointed by
Carter. Meeting with Russian judges from across the country, he was surprised to
hear their accounts of "telephone justice," when the party boss calls and tells
judges which way to vote. "They asked me, ‘do you have telephone justice in the
United States,' and I had to explain to them that no, the President wouldn't
call you. He'd be crazy to do that."
More and more people today think that judges make
decisions based on politics rather than the law, he added. O'Connor began to
interrupt, then changed her mind. "No, no," she said, waving her hand at him,
"you tell them."
He continued. "It's extraordinary that three
hundred million people have agreed to settle disputes using the law, not sticks
and stones on the street, like they do in some places."
Sally Rider asked what people who are concerned
about judicial independence can do. "It takes concerned citizens" said O'Connor.
And it takes activism from the business community, because "legislators will
listen to them more than the average housewife." Breyer said this was a
difficult message to get across to people. "That's why the people I like talking
to the most are 9th and 10th graders, because they want to
know about this stuff."
He encouraged the audience to get involved any way
they could—writing to newspapers, or volunteering at schools to talk about the
law. "Our method of resolving disputes in this country, what a treasure it is."
"That's a good place to stop," O'Connor
nodded. "I totally agree."
The Selling of the
Judiciary: Campaign Cash ‘in the Courtroom’
“We put cash in the courtrooms, and it’s just wrong,”
Sandra Day O’Connor, the former Supreme Court justice, declared at the start of
a conference in New York last week on a growing threat to judicial independence
and integrity: the escalating millions that special interests are pouring into
state judicial elections in an effort to buy favorable rulings.
The substance of her remarks was no surprise. Since
retiring in 2006, Justice O’Connor has devoted herself to spreading the word
about assaults on judicial independence and the bedrock principle of impartial
justice — including from big-money state judicial campaigns. Still, it was
startling to hear a former member of the nation’s highest court speak about the
problem in such stark terms. No question, her alarm is well-founded.
Thirty-nine states elect at least some of their judges.
On top of the inappropriate judicial involvement in partisan politics, recent
years have seen the dawn of a grubby new era of multimillion-dollar campaigns
for important state judgeships. They include 15- and 30-second attack ads, a
staple of competitive races for top executive and legislative posts. These
slugfests are largely underwritten by well-heeled interest groups — including
insurance companies, tobacco firms, the building and health care industries,
unions and trial lawyers — that have seized upon judicial contests as a
promising avenue for influence-peddling.
The implications for the nation’s justice system are
enormous. About 95 percent of cases are handled by state courts rather than
appointed federal judges, notes Justice Stephen Breyer, who appeared at the
Fordham Law School conference with his former colleague. Experts expect that
2008 will be another banner year for raucous and expensive judicial
The perception that money is corrupting the courts would
be damaging enough. But often, it seems, special interests are finding that
buying up judges likely to side with them in big-dollar cases is a good
investment — the real-life grist for John Grisham’s new fictional legal
thriller, “The Appeal.”
Events this month in Wisconsin and West Virginia only
deepen these concerns. On April 1, the first and only African-American member of
the Wisconsin Supreme Court, Louis Butler, lost his seat after a nasty, racially
charged campaign in which his opponent, Michael Gableman, was aided by a barrage
of TV advertising, paid for by the state’s largest business lobby.
In West Virginia, meanwhile, the State Supreme Court’s
handling of a case involving a large coal company, Massey Energy, took on a
decidedly farcical flavor. For the second time, the appellate court threw out a
$50 million verdict against Massey.
The court decided to rehear the case after photographs
publicly surfaced of its chief justice, Elliott Maynard, vacationing in Monte
Carlo with Massey’s chief executive, Don Blankenship, in 2006, while the matter
was pending in the Supreme Court. The chief justice disqualified himself from
the rehearing. So did another justice, Larry Starcher, because he had publicly
criticized Blankenship and his company. The 3-to-2 outcome in favor of Massey
was unchanged from the first round, which might not have been noteworthy except
that the deciding vote was cast once again by Justice Brent Benjamin, who
declined to recuse himself despite owing his election to the court to more than
$3 million spent by Mr. Blankenship.
In response to such travesties, judicial reformers have
stepped up their call for public financing and strict fund-raising rules for
state judicial contests or a switch to a nonelective merit selection system.
But with states in no rush to make these changes, a new
report from the Brennan Center for Justice smartly focuses on an effective if
less sweeping antidote that would be more achievable in the short-term:
persuading jurisdictions to strengthen their recusal rules.
Surely special interests would be less inclined to invest
so heavily in judicial elections if they knew the recipients of their largess
likely would be barred from sitting on their