Former Supreme Court Justice Sandra Day O’Connor called for an end to judicial elections at a conference at Seattle University School of Law that sparked conversation about the critical issue of how judges are chosen.
More than 400 judges, lawmakers, attorneys and interested citizens attended State Judicial Independence — A National Concern on Sept. 14. Distinguished experts spoke on panels throughout the day. The conference was organized by David Skover, the Fredric C. Tausend Professor at Seattle University School of Law.
Justice O’Connor, the first woman appointed to the U.S. Supreme Court, says judicial independence is one of the most important issues of the day. Since retiring from the bench in 2006, she has worked tirelessly to promote the idea of judicial independence and more civics education in public schools.
She recommends steering away from competitive elections, which she says have become “nasty, expensive and destructive,” and instead have appointed judges who must face retention elections.
Before taking the stage, Justice O’Connor had lunch with a group of women student leaders from the law school. She asked about their backgrounds and goals, and told them to do something that matters. “Don’t work for the money,” she said. “Work for the good you can do.”
Professor Heidi Bond, who was a clerk for Justice O’Connor, enjoyed a warm reunion with her former boss, calling her “an incredible person.”
Justice O’Connor praised the law school. “This is quite a law school,” she said. “I think you’ve done something right by attracting so many good students. I really did enjoy meeting the students. They were an impressive group, to say the least.”
The all-day conference provided the first in-depth analysis of the U.S. Supreme Court’s recent decision in Caperton v. Massey. In Caperton, the Court recognized that one of America’s most fundamental values is transgressed when campaign expenditures — because of their sources, size and timing, and the manner in which they are made — threaten the state judiciary’s duty to render due process and the reality and appearance of state judicial integrity and evenhandedness.
With its striking facts — a corporation’s exorbitant financial efforts to secure the election of a state high court judge who would inevitably sit on the appeal of its pending litigation — Caperton puts into bold relief a dilemma of national proportions. On the one hand, as long as states continue to elect their judges, campaign contributions remain a necessity; on the other hand, dramatic escalation in judicial campaign spending undermines the safeguards of judicial impartiality necessary to maintain the rule of law.
Caperton thus affords an opportunity to consider an important aspect of the question of state court independence — namely, that relating to money and judicial elections. Whatever the limitations of its holding, Caperton supports the view that state judicial impartiality is not the sole province of the state government. Put starkly, “justice for sale” in a state court system is not only a federalism concern, but a federal concern.
Other sessions included a discussion exploring what state legislatures and courts can do to address judicial campaign “arms races” and a panel discussion, including Justice O’Connor, on the merits of replacing judicial elections with a commission/appointment system.
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