Justice O’Connor’s Hypocritical Crusade Against Judicial Elections

by Carrie Severino

Retired justice Sandra Day O’Connor continues to crusade against state and local judicial elections, this time during a speech last week at Elmhurst College. The Chicago Tribune has more:

[Justice] O’Connor said she opposes the election of judges, and she believes the practice may create a misunderstanding of the role of a judge.

“I think there are many who think of judges as politicians in robes. In many states, that’s what they are,” she said.

This is a favorite talking point of George Soros and his allies, who want to replace judicial elections with the trial-lawyer dominated “merit” selection method. The only problem is the empirical evidence doesn’t support Justice O’Connor’s conclusion. As Professor Chris Bonneau explains

There is no evidence that elections cause voters to view judicial institutions as less legitimate. In 2008 and 2009, Washington University professor James Gibson, in a series of survey experiments, found that while particular campaign contributions can lead to legitimacy concerns, there are no such consequences when candidates engage in policy talk, negative ads or other ordinary incidents of a judicial race. Additionally, according to Gibson’s data, the net effects of elections are still positive in terms of public perception of the judiciary.

There is no difference, other things being equal, in the quality of judges who emerge from elections as opposed to appointments. Law professors Stephen Choi, Mitu Gulati and Eric Posner recently found that appointed judges not only do not perform at a higher level than elected judges in terms of opinion quality and output but also that elected judges do not appear to be less independent than appointed judges. The authors were appropriately cautious in interpreting their findings, but any fair reading of their results suggests that elected judges are, at worst, equal to appointed judges in quality and independence.

Professor Bonneau has also found no conclusive evidence to suggest that “justice is for sale” in state judicial elections.    

If anything, Justice O’Connor’s herself has “create[d] a misunderstanding of the role of a judge,” and not only by planting and regularly reiterating her accusations that the many honest judges chosen by elections are somehow tainted by that process. She has also improperly blurred the role of judge and politician by her own involvement in the very political question of judicial selection.

Despite her retirement, Justice O’Connor is still regularly deciding cases as a judge. She sits by designation on the Ninth Circuit Court of Appeals, and has participated in numerous cases since 2006. As a sitting federal judge, she is bound by the Code of Judicial Conduct which, in Canon 5, forbids participation in political activity.

That hasn’t stopped her from getting heavily involved in various political issues by:

Signing onto a letter that proposed a framework for a Middle East peace accord. The letter weighed in on the “vast disparity of power” between Israel and Palestine, and called for Jerusalem to house the capital for both Israel and Palestine. Who knew Justice O’Connor found time on the Court to become a foreign policy expert!

Participating in an Iowa conference opposed to judicial elections during that state’s high-profile state retention elections. Justice O’Connor’s participation raised eyebrows among her fellow judges and violated the advice of the Federal Judicial Conference’s Judicial Ethics Committee, as Senior D.C. Circuit Judge Silberman, explained: ”The conference was held at the very time a vote loomed of whether to retain three Iowa supreme court justices who had joined a unanimous opinion holding gay marriage protected by the Iowa constitution.” Justice O’Connor ignored the advice of the federal judiciary’s ethical body, which opined that the event, though allegedly decrying judicial politicization, was itself too political for a federal judge to attend.

Endorsing a Nevada ballot measure for judicial merit selection. Justice O’Connor was an honorary co-chairwoman for a campaign to pass the ballot measure, and even recorded a robo-call and web-video in favor of the measure.

If anything represents an assault on judicial independence, it is direct involvement in political campaigns and initiatives by a sitting judge — the precise type of behavior Justice O’Connor has engaged in.

But what might be even more detrimental to public confidence in the judicial branch is a retired Supreme Court justice, who is actively deciding cases, traveling around the country accusing the nation’s elected judges of being for sale. 

It’s not just empirically wrong, it’s hypocritical.

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