Bench Memos

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Justice O’Connor’s One A.M. Robo-calls in Support of Ballot Initiative


Do the ethics rules governing federal judges really permit a federal judge to robo-call voters in support of a ballot initiative?

That question is raised by the apparent decision by former Justice Sandra Day O’Connor—who has retired from the Supreme Court but who, rightly or wrongly, maintains that she now has senior status and can still sit on lower-court cases—to authorize use of her voice on robo-call messages to Nevada voters in support of Question 1 (which would alter the state’s method of selecting its judges). Amusingly enough, according to this article, the robo-calls were mistakenly generated at 1 a.m. rather than 1 p.m. As one Nevada voter has written (in a comment on this article):

Just got a call at 1am in the morning with Sandra Day O’Connor telling us to vote YES on question one.… I was planning to vote NO, now I am definitely voting NO!

Canon 5 of the Code of Conduct for United States Judges provides: “A judge should refrain from political activity.” Canon 5C, in emphasizing that a judge “should not engage in any other political activity” in addition to the general prohibitions in Canon 5A, states: “This provision does not prevent a judge from engaging in activities described in Canon 4.”  But although Canon 4 (in paragraphs A(1) and (2)) generally permits a judge to “participate in … activities concerning the law” and to “consult with or appear at a public hearing before an executive or legislative body or official” on certain matters—activity that could be labeled “political”—I see nothing in it that would plausibly be read as authorizing a judge to campaign in support of a ballot initiative.

If O’Connor wants to continue her unseemly politicking on state judicial selection, she should fully and unmistakably retire from the bench. Pronto.

Update: A reader calls my attention to several videos by the Yes on Question 1 campaign that feature O’Connor (both in English and dubbed in Spanish) supporting the initiative.

Further update:  In a ruling issued today by a divided Ninth Circuit panel in Gonzales v. Arizona, Justice O’Connor cast the deciding vote in support of a holding that an Arizona initiative that (1) requires prospective voters to present documentary proof of citizenship in order to register to vote, and (2) requires registered voters to present proof of identification in order to cast a ballot at the polls is preempted by the National Voter Registration Act. Plaintiffs in the case included the League of United Latin American Citizens Arizona, the Arizona Hispanic Community Forum, and the Southwest Voter Registration Education Project. I suspect that O’Connor’s vote will help her outreach to Spanish-speaking voters on Question 1. (I am not suggesting that O’Connor was motivated to achieve that effect.) That’s just one illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge.


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