(from The Wall Street Journal, October 29, 2010)
The former Supreme Court justice wants trial lawyers to pick state judges.
By David B. Rivkin. Jr. and Andrew M. Grossman
Call it Supreme Hypocrisy: An ex-Supreme Court justice, still issuing rulings from the bench, wields her political clout to push citizens to abandon their own politics.
“This is Sandra Day O’Connor calling about Ballot Question 1? was the recorded message that greeted Nevada voters when they picked up the phone earlier this week. Justice O’Connor, who retired from the Supreme Court in 2006 but sits on lower federal courts from time to time, was pitching a Nov. 2 state initiative that would replace judicial elections with “merit selection.”
This is a misnomer: Merit doesn’t figure into “merit selection.” As in the other 25 states and the District of Columbia that have the procedure, the Nevada initiative simply shifts the job of choosing judges from voters to a nominating commission. The commission presents a roster of nominees to the governor for final selection and appointment.
Citizen input is limited to a judicial retention vote every four or six years. Giving voters any more say in who shall be their judges makes the whole process “tawdry and embarrassing,” Justice O’Connor said last year, and also opens the door to corruption, real and perceived. There’s no empirical evidence, however, to support that assertion.
The public campaign for merit selection has been led by O’Connor’s Institute for the Advancement of the American Legal System. But behind the scenes is liberal moneyman George Soros, who has provided $45 million in grants to groups like Justice at Stake and the left-wing People for the American Way that press for an end to judicial elections.
Think of it as an investment in judicial activism. Selection boards get captured by trial lawyers, academics and antibusiness activists. They nominate plaintiff-friendly judges and state legislatures rubber-stamp them. Rather than play to the voters, would-be judges play to the special interests that dominate the commissions. This campaigning takes place behind closed doors. One Missouri judge called the process “exclusive, secretive and political.”
In “merit” states the law takes a left turn toward jackpot justice. This has played out in Alaska and Wyoming, both states in which “merit” picks have struck down common-sense tort reforms. So too in Missouri, the birthplace of commission rule.
In addition to the robocalls, Justice O’Connor has appeared in a series of videos urging voters to approve the initiative as part of a year-long media blitz on “merit” selection. While it’s an odd sight, a federal judge dabbling in politics to excise politics from the judicial sphere, there is a serious question here: When may a judge, sworn to “faithfully and impartially” apply law, politick to change it?
One answer is in the Code of Conduct for United States Judges: “A judge should refrain from political activity.” In a statement on Wednesday, Justice O’Connor said, without further explanation, that her political campaigning is “consistent” with the Code of Conduct. But Justice O’Connor may be the only federal judge who can get away with it because the Code does not directly apply to Supreme Court justices.
Earlier this week, she served on a three-judge panel of the Ninth Circuit that struck down an Arizona law requiring proof of citizenship to vote. Critics of hers argue that Hispanics in Nevada—and others who agree with her Arizona ruling—might now vote yes on Ballot Question 1 simply because of the Justice’s endorsement.
While Justice O’Connor surely didn’t hand down her Arizona decision for that reason, her activism creates a conflict of interest. The potential for conflicts is also why the federal ethics rules bar federal judges from direct fund-raising and speech-making for political organizations.
The retired justice obviously sees herself as immune to the evils that the merit-selection crowd sees in judicial elections—grubby fund-raising, making commitments on the proper role of judges and the meaning of the rule of law.
No doubt she is. But why should anyone think worse of judges who have engaged in lesser politicking to win office?
Messrs. Rivkin and Grossman are Washington-based lawyers. Mr. Rivkin served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.