Bench Memos

Justice: Resign

Ed Whelan deserves thanks for bringing attention to the story about Justice O’Connor’s campaign on behalf of Nevada Question 1.

As a member of the Court, Justice O’Connor never applied a discernible judicial philosophy to her decisions. Her opinions appeared to be based on her personal internal compass with poles that shifted in accordance with her political outcome preferences. Now that she is a roving federal judge continuing to be paid by the taxpayers of the United States, she is getting even more political, lending her voice to tacky robo-calls on behalf of a political measure that would empower trial lawyers and liberal special-interest groups to hand-pick state judges. Even though the robo-calls in Nevada represent an all time low in terms of tactics, it is not the first time she has given a stump speech in a state that is debating judicial selection. In February of 2009, she appeared in Missouri to defend the Missouri Plan, which was (and remains) the subject of intense wrangling in the state legislature. Most recently, in Iowa, she has campaigned defending three judges from being removed by voters for their gross judicial overreach imposing homosexual marriage upon the citizens there.

Justice O’Connor’s campaign swings in both Nevada and Iowa came as a spokesperson for George Soros-funded legal front groups like Justice at Stake. O’Connor’s robo-call antics are a dramatic departure from her public posturing as a thoughtful neutral arbiter of the law and represent a serious ethical breach.

That campaign in Nevada is probably doomed to fail (see here for JCN’s poll on the issue) while the Iowa retention elections remain too close to call, but Justice O’Connor’s political activity is unprecedented. In addition to her status as a former Supreme Court member she still sits on important cases as a roving federal judge. The questions posed by her flagrant political activity are not merely a matter of proper etiquette — it goes to the core of her constitutional duty to be a neutral arbiter of the law.

In addition to the questions Ed has already raised, some enterprising journalist should investigate the extent (and funding) of her political activity, and ask O’Connor if it violates the canons of the Code of Conduct for United States Judges.

* Who is paying for her travel and expenses when campaigning on behalf of Question 1? Is it taxpayers?

* How much is she being paid? Is she receiving compensation or reimbursements from any of the Soros-affiliated groups (Nevadans for Question 1, Justice at Stake, American Judicature Society, Open Society Institute) which support the merit deception?

* Does she, or any group, plan on reporting such compensation or reimbursements as required under Canon 4H?

* Who paid for the robo-calls? Did that group receive the funding for the calls from any of the Soros-affiliated groups who support the merit deception? Has it all been properly reported?

* In the course of producing robo-calls, TV ads, or during any other activity on behalf of Question 1, did she use “judicial chambers, resources, or staff to engage in extrajudicial activities” outlined in Canon 4G?

* How does Justice O’Connor square her involvement in the Iowa judicial elections and Nevada ballot initiative with the requirement of Canons 5A and 5C, that she not make speeches for any political organization, publicly endorse or oppose a candidate for public office, or engage in other political activity?

O’Connor no doubt understands the game she is playing by joining forces with George Soros’s legal lap dogs, but she has made a calculated decision to be a political leader now, destroying her ability to act as a neutral arbiter of the law. I call upon her to immediately resign her federal judicial post. Justice O’Connor must be transparent with the taxpayers who pay her salary and with the American public that deserves a judicial system made up of neutral arbiters of the law not political activists.

Gary Marx is the executive director for the Judicial Crisis Network.


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