Bench Memos

O’Connor Meddling in Michigan

Former U.S. Supreme Court justice and current political activist Sandra Day O’Connor visited Michigan yesterday to stump for a local effort to adopt the Missouri “Merit Deception” Plan for picking judges. (Apparently her failed robo-call campaign in Nevada was not embarrassing enough to dissuade her from carrying water for trial lawyers in Michigan.) She did not allow her speech to be recorded, but I have been told that the speech was just as logically incoherent as the one she has delivered on this topic in other states. Despite the usual problems with her remarks, however, I have been told that there were some positive points worth highlighting.

The Good: Former Michigan chief justice Cliff Taylor spoke before Justice O’Connor. He cited empirical data and recent historical evidence to defend elections and make a powerful case that the Missouri Plan is a deeply flawed method for selecting judges. Some have speculated that his remarks may have caught O’Connor off-guard, because she later conceded some of the weaknesses in the Missouri Plan. Specifically, I am told that O’Connor acknowledged that the federal method of selection ought to be the model for states, and that states like Missouri and Kansas could (and should) put an end to their own controversies in this area by reducing the Bar’s influence in their own Missouri Plans.

The Bad: O’Connor reportedly stated that judicial elections are inconsistent with our constitutional democracy. (One is tempted to argue here that many of O’Connor’s opinions were inconsistent with our Constitution.) If any method of judicial selection should pose a problem for a proponent of constitutional democracy, it is the Missouri Plan. In states that use that method, constitutional cases are decided by supreme court judges selected by a handful of “specialists” who are completely insulated from accountability for their decisions. As Taylor argued in his remarks, by vesting the bulk of the discretion and authority over judicial selection in a politically independent nominating commission, the Missouri Plan allows the governor — “the only person in this process who ha[s] any claim to having presented his ideas on who should serve as justices to the people, and thereafter having secured a majority of their votes” — to be “blocked in a transparently political move” that compels him to pick the least disagreeable of the nominees sent to him by the commission. 

The Ugly: According to the State Bar of Michigan, O’Connor underscored her point about constitutional democracy by using Brown v. Board as an example of a case that would have been decided differently if federal judges were elected. The argument is specious, but a response is worth articulating because it demonstrates just how substantively vapid Justice O’Connor’s ongoing effort to promote the Missouri Plan really is.

First, O’Connor’s supposed silver-bullet hypothetical is a reference to the federal judiciary, but she has been campaigning across the country for the Missouri Plan, a very different method of judicial selection. I would be willing to bet that a substantial number of the public officials and opinion leaders who are so tired of the Missouri Plan in their states would be happy to settle for the method by which federal judges are selected. But, as we have seen in Missouri and Kansas, trial lawyers and Soros allies treat efforts to abolish the Missouri Plan and replace it with the federal model as deep threats to “judicial independence.”

Second, it strikes me as somewhat dubious to get into the business of speculating about SCOTUS decisions that might have been decided correctly or incorrectly if the Justices had known they would face any sort of accountability. But let’s stipulate that her highly speculative claim is correct. If an elected U.S. Supreme Court would not have decided Brown v. Board as it did, for fear of being defeated in the next election, then it also stands to reason that they wouldn’t have made the decision if they had been selected under the Missouri Plan since judges in those states must face voters in retention elections. As Professor Brian Fitzpatrick and many others have documented, retention elections are meaningless in the overwhelming number of cases, because voters are not faced with any real contrast. But in cases of extreme controversy they can serve as a legitimate accountability mechanism. For instance, the citizens of Iowa rid themselves of three supreme court judges who had imposed gay marriage on their state, and years ago the citizens of California rid themselves of Rose Bird for overturning the death penalty in every possible case. So her appeal to Brown is unpersuasive.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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