Bench Memos

Misplaying the Victim Card on Behalf of O’Connor

In an essay on Slate titled “Lay Off Sandra Day O’Connor,” Bert Brandenburg, executive director of an organization called Justice at Stake, ridiculously claims that criticism of the dubious ethical propriety of Justice O’Connor’s unprecedented politicking amounts to a “political mugging” and a “drive-by political hit.” A few observations:

1. I have explained in detail why I believe that O’Connor’s crass politicking in support of Nevada’s Question 1 on judicial selection is not consistent with the Code of Conduct for United States Judges. I directly confronted and refuted the breezy contrary conclusion offered by law professor Stephen Gillers. Although Brandenburg quotes one of my posts and links to another, he somehow doesn’t see fit to quote or link to my refutation of Gillers (much less take issue with it), even as he hides behind Gillers.

2. Under Brandenburg’s and Gillers’s view, there is no ethical limit on the politicking that sitting federal judges can engage in to support or oppose a voter initiative or a piece of legislation so long as the initiative or legislation concerns the law, the legal system, or the administration of justice. Robo-calls to voters? Fine. Appearances in campaign ads? Fine. Handing out leaflets at polling places while wearing a judicial robe? Fine.

Again, as I’ve explained in the link above, that’s an implausible reading of the interplay between two judicial canons. Further, the Committee on Codes of Conduct, with its warning that a judge “should be sensitive to the nature and tone of the activity,” has clearly rejected the Brandenburg/Gillers position that anything goes so long as the activity concerns the law, the legal system, or the administration of justice.

3. Does Brandenburg really think that it’s mere happenstance, or the excessive delicacies of all federal judges in the past, that explains why O’Connor’s level of politicking is (so far as I’m aware) unprecedented?

In this regard, I’ll note that a longtime federal judge—one who, incidentally, is a Democratic appointee and who agrees with O’Connor’s position on judicial selection—has passed along to me his or her view that O’Connor’s politicking on that cause is “totally inappropriate.”

4. Brandenburg thinks that a sufficient remedy for political activity is recusal: “judges who speak up have to walk a fine line and be ready to consider recusing themselves when a case overlaps with a cause.” But Canon 5 provides that a judge “should refrain from political activity”—not merely that a judge should recuse from any case that presents a conflict with the judge’s political activity.

5. Brandenburg claims that the “immediate goal” of criticizing O’Connor “is to shut her up.” But the issue isn’t whether O’Connor can do robo-calls, or engage in other politicking, in support of Nevada’s Question 1. It’s whether she can do those robo-calls and other activity while continuing to sit on the federal bench. If O’Connor were to fully retire from the federal judiciary and return to the status of a private citizen, then she would have all the rights of a private citizen to engage in political activity.

6. In a purported “disclosure” in his essay, Brandenburg, whose group is funded by George Soros’s Open Society Institute, claims that his group “works on issues of judicial fairness but does not support one method of selecting judges over another” (emphasis added). But in fact his group has made a substantial in-kind contribution to Nevadans for Qualified Judges, the organization leading the Yes on 1 campaign—the second largest contribution that organization reported in its most recent filing. And, yes, Nevadans for Qualified Judges is the organization that features Justice O’Connor as its honorary chairwoman, that highlights her in its videos, and that arranged her robo-calls. 

So what Brandenburg isn’t disclosing is that his group is helping to support the very activity by O’Connor that he’s pretending to defend as a neutral observer.

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