Bench Memos

Justice O’Connor’s “Totally” Unpersuasive Analysis

A Washington Post story today discusses how, since retiring from the Court, former Justice O’Connor has created controversy by “creating her own template for life after the court”: “she crosses the country advocating for causes she favors,” all the while “continuing to hear cases as a judge on the appellate courts.” Among her activities in support of “causes she favors”:

During a campaign in Iowa to oust state Supreme Court justices who had ruled that a prohibition of same-sex marriages violated the state constitution, she attended a conference on judicial elections. Other federal judges had been informally told that attending the conference might violate rules against participating in political events.

She took no stance on the retention issue in her speech at the conference but said voters should not “punish” judges for unpopular decisions.

She also lent her support to an effort in Nevada to replace its system of electing judges with a merit selection plan. She was embarrassed when an advocacy group supporting the effort used her voice in robo-calls to voters — especially when a glitch launched the automated phone calls in the middle of the night.

Although the reader wouldn’t glean it from the article, the “advocacy group” that “used [O’Connor’s] voice in robo-calls to voters” in Nevada was the “Yes on Question 1” campaign, for which O’Connor served as honorary co-chairwoman and for which she recorded a series of web videos. So even apart from the robo-calls, she was neck-deep in politicking in support of Question 1.

The article also offers O’Connor’s feeble defense of her politicking in Iowa and Nevada:

“My understanding of the canons of judicial ethics is that it’s expressly allowed for judges to take positions on things affecting the operations of the courts,” she said in the interview. “Nothing affects them more than how judges are chosen.

“So I read that as being totally allowed — totally.”

As I’ve explained before, I don’t think O’Connor’s defense is persuasive (and, as I’ve discussed before and as the article notes, neither does senior D.C. Circuit judge Laurence Silberman). 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, the commentary to Canon 4 states that a judge is to “contribute to the law, the legal system, and the administration of justice …. either independently or through a bar association, judicial conference, or other organizations dedicated to the law.” I don’t see how Canon 4 could plausibly be read as authorizing a judge to campaign in support of a ballot initiative on behalf of the initiative sponsor.

Again, here’s what the Committee on Codes of Conduct, charged with advising on the meaning of the ethics rules, has said about the interplay between Canon 4 and Canon 5. Advisory Opinion No. 93 (available here) issued by the Committee on Codes of Conduct states (emphasis added):

[E]ngaging in law-related extrajudicial activities where the activity is political in nature is fraught with risks for judges.… A judge should be sensitive to the nature and tone of the activity, and should not be drawn into an activity in a manner that would contravene Canon 2’s goals of propriety and impartiality or Canon 5A’s prohibition of activities pertaining to political organizations or candidates.  Further, because of the ethical risks associated with any politically-oriented activity, we construe permissible Canon 4 activities in this context narrowly, restricted to those activities that are most directly related to the law and legal process.

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