Justice O’Connor’s Hypocritical Crusade Against Judicial Elections

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:



‐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.

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

Most Popular

Politics & Policy

Broward’s Cowards

It is impossible to imagine circumstances under which Broward County sheriff Scott Israel could attempt to perform his duties with the confidence of the public. He should resign immediately, and if, as he promises, he refuses to go quietly, then he should be shown the door by the people he professes to ... Read More

Courage: The Greatest of Virtues

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Or Listener), As the reporter assigned the job of writing the article about all of Sidney Blumenthal’s friends and supporters told his ... Read More

My American Dream

This morning, at 8 a.m., I did something I’ve wanted to do for as long as I can remember: I became an American. I first applied for a visa in early 2011, and since then I have slowly worked my way through the system — first as a visa-holder, then as a permanent resident (green card), and, finally, as a ... Read More
Politics & Policy

CNN’s Shameful Town Hall

CNN recently hosted an anti-gun town hall featuring a number of grieving children and parents from Stoneman Douglas High School in Parkland, Fla., who aimed their ire at the National Rifle Association, politicians peripherally associated with the NRA, and anyone who didn’t say exactly what they wanted to hear. ... Read More

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More