By John Minnis
Legal News
Neither snow nor airport delays could keep Sandra Day O’Connor from flying in from Washington, D.C., for her keynote speech on judicial selection reform Tuesday, Feb. 9, at Wayne State University (WSU).
The retired U.S. Supreme Court associate justice was introduced by Michigan Supreme Court Chief Justice Marilyn Kelly.
“I’m pleased to meet your chief justice,” O’Connor told the respectable turnout of WSU Law School faculty, students and members of the bar and bench attending the symposium in the school’s posh Community Arts Auditorium. “I’m glad she is a female.”
The nonpartisan symposium, “Options for an Independent Judiciary in Michigan,” co-sponsored by the Wayne State Law School and the American Board of Trial Advocates (ABOTA), featured eight speakers from across the country who spoke on various potential reforms to the process of electing or selecting Michigan’s Supreme Court Justices in 2020 and beyond.
“The current threats to an independent judiciary are intertwined in politics,” O’Connor said.
The judicial landscape has changed, the associate justice said, as recently as two weeks ago.
She was referring to the U.S. Supreme Court’s 176-page decision in Citizens United v. Federal Election Commission handed down Jan. 21. In a 5-4 decision, the Court overruled — among other precedents — a 19-year-old precedent, Austin v. Michigan Chamber of Commerce, that censored corporate political speech due to “the corrosive and distorting effects of immense aggregations of wealth” that corporations wielded.
In Citizens United, the Court essentially struck down federal laws that limited how much money corporations — and labor unions — can spend on political campaigns. The Court defined “political spending” as synonymous with “political speech” and, hence, any limit on campaign spending would strip the corporation of its First Amendment right to free speech. In the wake of the Citizens United decision, campaign finance reformers fear a floodtide of corporate dollars flowing into political campaigns and nasty attack ads, in particular.
“I’ve stepped away from the Court, what, four years now?” O’Connor said. “There’s no telling what’s going to happen.”
A proponent of the merit selection of judges at all levels, the associate justice said all states using popular elections for choosing judges should take a second look.
Providing a bit of a history lesson, O’Connor told about how judges in Colonial America were selected by the King, which made judges solely dependent on the crown.
She quoted a passage form the Declaration of Independence:
“(The King) has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
“He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”
To prevent the government’s domination of judges, the framers of the U.S. Constitution made federal judgeships lifetime appointments free of political influence. Foreseeing legislative chicanery, the framers of the Constitution further established judicial salaries that could not be diminished.
“Of course,” O’Connor said, “the Constitution did not provide for the increase of salaries either.”
She said the framers of the Constitution were aware of the importance of creating a “safe place” where doing what was right was more important than the popular will. “There was one safe place in our system of government,” O’Connor said, “and that was in the courtroom.”
The associate justice cited Brown v. Board of Education as an example of an independent judiciary doing what was right rather than bowing to the popular will.
“I doubt the people of the South favored integration of schools,” she said.
O’Connor noted that 80 percent of state and local judges in the United States have to win a political election either to get on the bench or stay in office. She credited the people’s rejoinder, “I want to vote for my judge,” as symptomatic of an erosion of confidence in the judiciary.
“If you don’t believe in a judge’s ability to be impartial, you are more likely to vote for one who is partial to people like you,” said O’Connor, indicating the extremes to which such thinking can lead. “If judges can be swayed, then you should spend a lot of money to sway the judge in your favor.”
Likewise, she said, if voters believe in judicial legislating, then they should elect judges who legislate the way the majority of voters want them to.
The associate justice then went on to another of her former colleagues’ recent decisions, Caperton v. Massey, decided six months earlier. While in Citizens United the Court ruled that corporations can spend as much on political campaigns as they wished, in Caperton the Court said judges must be aware of the perception of partiality such donations may create.
Caperton v. Massey involves a business dispute arising out of West Virginia. In 2004, Massey Coal Co.’s CEO formed a nonprofit corporation that spent $3 million on attack ads against state Supreme Court Justice Warren McGraw, who was being challenged for re-election by Charleston lawyer Brent Benjamin.
The challenger won the election in 2004, largely due to the Massey CEO’s help. In 2007, Casey v. Massey reached the West Virginia Supreme Court.
Despite the fact that one of the parties in the case helped get him elected, Justice Benjamin refused to recuse himself from the case and ruled in favor of Massey. (Caperton v. Massey formed the basis for John Grisham’s book, The Appeal.)
The U.S. Supreme Court found for Caperton and remanded the case back to the West Virginia Supreme Court. Writing for the majority, Justice Kennedy called the appearance of conflict of interest so “extreme” that Benjamin’s failure to recuse himself constituted a threat to the plaintiff’s constitutional right to due process under the 14th Amendment. The Court also noted that “not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.”
“It’s a sad state of affairs when this comes up as a constitutional question,” O’Connor said. “A state should never be in a situation like that in the first place. Caperton showed America how campaign contributions can poison the system.”
The associate justice thought little of “tweaking” campaign and recusal rules, which in effect is only “tweaking a political system that is specifically designed to allow political influence. … Even if judges can recuse themselves from a case, the system is still damaged by the thought that a judge could be biased. “In short,” she said, “judicial elections are inconsistent with a judge’s independence only to the law.”
Citing the escalating costs of state supreme court campaigns, O’Connor fears the Citizens United decision will spark a campaign funding “arms race” and that “mutually assured destruction is the only possible outcome.”
She said the only way to prevent the damage to the judicial system is for states to adopt the merit selection of judges, which her home state of Arizona adopted back in 1974.
“It fixed our judiciary,” said O’Connor, 79. “Our judiciary is better qualified, more diversified.”
Just as the economic collapse of 2008 forced many people to rethink the way business is being done, she said, so Citizens United and Caperton may force people to rethink the way judges are selected.
“Many Americans do not recognize the importance of an independent, impartial judiciary,” O’Connor said. “You can help. Tell your state leaders what you want and think.”
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