Education / Schools, Federal Judges, Politics, Sandra Day O'Connor, SCOTUS, State Judges, Supreme Court

Should Judicial Elections Be Abolished?(Or: ATL chats with Justice Sandra Day O'Connor.)

onOctober 6, 2009 at 3:37 PM

Retired Supreme Court Justice Sandra Day O’Connor is not really retired yet. “I am more busy in retirement than before,” she told Above the Law in a recent interview. One of her myriad projects is Our Courts, a non-profit organization that develops Web-based games to teach seventh- and eighth-graders about government. We spoke with Justice O’Connor recently for our piece for the Washington Post reviewing the games.
We had hoped to actually play the games with her, but it turns out she’s not much of a gamer. Not being the computer type, she hasn’t actually played the Web-based games herself. “I watched young people play it. They have a lot of fun. They’re actively engaged. I think it’s very exciting,” she told us.
Justice O’Connor has been touring the country to promote the games. She even stopped in to chat with Jon Stewart on the Daily Show. We got to catch up with her via conference call last month. We rung her up at One First Street — like some retired Biglaw partners, retired SCOTUS justices get to keep an office. After her secretary connected us, Justice O’Connor answered the phone: “Sandra Day O’Connor.”
We discovered that O’Connor is adamant about bringing an end to the election of judges in America. Read more from our interview, after the jump.

We introduced ourselves to the justice. Justice O’Connor was not familiar with Above The Law (unlike other justices, such as Justice Antonin Scalia; perhaps it’s because she retired in 2006, before we launched). But she kindly granted us permission to use in these pages the portions of the interview that didn’t make it into our Washington Post piece.
As mentioned previously by the WSJ Law Blog, Justice O’Connor has written a children’s book and served on the Iraq Study Group panel since retiring. She’s still judging, though not just because she wants to, she says.
“By law, I am required to sit on the lower federal courts. I have the statute copied somewhere around here,” she told us. She noted that a retired justice can retire completely if they’re too sick to continue judging. But O’Connor is a spry 79, and she maintains about a two-thirds workload. She sat most recently with the Fourth Circuit and will soon sit with the Sixth Circuit. As for which courts she sits with, “I do have a little choice in that,” she said.
O’Connor stepped down from the Court because she needed to devote time to her husband, John Jay O’Connor III, who has severe Alzheimer’s disease. She spends quite a lot of her time in Arizona as his health continues to decline.
In a recent speech at William & Mary, she indicated that it can be difficult looking back at the Court she left behind. From USA Today:

Asked how she felt about the fact that the current court had undone some of her rulings, the nation’s first woman justice responded, “What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear.’ But life goes on. It’s not always positive.”

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From Pilot and Above The Law

She has been able to take on some amazing projects, though, in her SCOTUS retirement. In addition to Our Courts, she served on the board of the Foundation for the Future, at the request of the State Department. It meets regularly in Jordan, trying to promote civil society building in North Africa. “It was worthwhile and interesting, but difficult to go that far,” she said. “So Chief Judge Robert Henry is now serving on that board. He’s wonderful.”
Judge Henry has reason to blush; those were not O’Connor’s only kind words for him. She added that he “will be marvelous” for the Foundation.
We talked about what’s at the heart of O’Connor’s support of Our Courts. Her motivation stems in part from complaints she used to get from congressmen and state legislators about activist judges. She felt these complaints stemmed from a fundamental misunderstanding about the role of the judicial branch. “It seemed to me the nation was losing sight of some of the important theories and histories upon which the nation was founded,” she said.
“The Framers thought the only way you could preserve what had been created as a democratic society is to have a judicial branch where disputes can be resolved by competent, fair-minded judges who are not subject to retaliation for what they decide if it’s unpopular [with] the other two branches,” said O’Connor. “That was a major goal of the Framers, and Americans have forgotten that. You know that’s true when you look at our 50 states. Over 20 of them hold popular elections of judges.”
Justice O’Connor would like to see judicial elections ended, to protect the independence of the third branch of government. “We need to encourage judges and justices, when they speak in public arenas, to talk about these matters, and to keep reminding Americans about the importance of an independent judiciary,” said O’Connor.
She thinks that if Americans were better informed about the judiciary, the need to abolish elections would be self-evident. The states with judicial elections “allow campaign contributions to be made, and there can be vigorous and unfortunate campaigns. All of those states initially had appointed judges, and after Andrew Jackson became president, he had some very populist ideals, and he started persuading some of the states that they should elect judges, not appoint them. First state was Georgia. And they’re still doing that,” she said. “Look at the Caperton case. John Grisham’s novel on appeals might be based on it. It should be a source of real concern for Americans. If we have to resort to litigation, we want to feel issues will be decided fairly and impartially in court by a competent judge who is not subject to influence by campaign contributions and leanings towards one side or another.”
Some might argue that being involved in elections forces judges to be more transparent and to educate the public about what they do, but O’Connor disagrees with that notion. “If you have looked at some of the television ads in states that have judicial elections, I do not think you would be persuaded that it’s educational,” she said. “It’s not a very civilized or educational campaign.”
What do ATL readers think: is Justice O’Connor right?