Bench Memos

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There Goes O’Connor Again!


On top of her crass politicking on state judicial-selection methods, her support for a campaign to influence the EPA to block a mine, and her offering President Obama advice on how to conduct “US Middle East peace diplomacy,” the Arizona Republic reports that former Supreme Court justice Sandra Day O’Connor, who continues (rightly or wrongly) to hold herself out as a judge and sit on lower-court cases, “will address the Arizona Independent Redistricting Commission on Wednesday” to talk “about the importance of open discussion and share some thoughts about how to balance competing interests.” According to the article, the redistricting commission is in the process of redrawing Arizona’s political boundaries for state legislative and congressional seats.

There are few political issues more hotly contested than redistricting, and I find it puzzling that O’Connor would think it ethically appropriate for her to offer her views on the “competing interests” the commission is addressing. To be sure, the Code of Conduct for United States Judges (which doesn’t formally apply to Supreme Court justices, whether in active or senior status) is not crystal-clear, but I think the best reading of Canon 4 would prohibit lower-court judges from providing the sort of testimony that O’Connor will reportedly provide. Specifically, Canon 4.A(2) states (in relevant part) that a “judge may consult with or appear at a public hearing before an executive or legislative body:”

(a) on matters concerning the law, the legal system, or the administration of justice; [or]

(b) to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area.

If the terms “law” and “legal system” in subpart (a) are construed expansively enough to cover “how to balance competing interests” in redistricting, then it is difficult to imagine how any “public hearing” wouldn’t concern the law or the legal system. But such an expansive construction would seem oblivious to the line between judging and politics. As for subpart (b), I’m unaware of anything in O’Connor’s “judicial experience” that would give her “special expertise” in “the importance of open discussion” and in “how to balance competing interests” in redistricting. (I recognize, of course, that O’Connor has taken part in deciding legal challenges to redistricting laws, but surely subpart (b) doesn’t mean that a judge can testify at a public hearing—and should be deemed to have “special expertise”—on any matter broadly related to a legal question the judge has decided.)


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