December 15th, 2009
03:56 PM ET
10 months ago

Sandra Day O'Connor takes on new initiative

WASHINGTON (CNN) - Two state supreme court justices from neighboring states find themselves in disagreement these days - not over a legal issue,but over how they should have gotten their jobs.

The two justices - Ohio Chief Justice Thomas Moyer and Pennsylvania Justice Seamus McCaffery - were both elected in statewide votes.

Moyer says having to travel across his state to fundraise can erodepublic confidence in the courts.

"Going out asking for money creates a real strain in my judicial work,and I can't promise or predict to voters how I would decide a particular
issue," said Moyer. "It conflicts with the idea that judges are and should be impartial, and not be influenced by anything, especially money."

But as Pennsylvania's newest elected high court member, McCaffery foundvisiting all of his state's 67 counties on his Harley motorcycle to campaign was a treat.


"That's the beauty of having electoral process where we need to beresponsive to the community," said the former Philadelphia cop-turned-judge.

"And I think it's important that judges should be out there. It's just as important as other elected officials."

The experiences of both men are now at the forefront of a growing national debate over selecting judges.

The push for reform has a powerful advocate in retired U.S. Supreme CourtJustice Sandra Day O'Connor. She is lending her reputation and energy - and her name - to a new project aimed at assisting state-level efforts to have judges named by merit-based selection systems, not elections.

"This initiative is a matter of great importance to our country,"O'Connor told CNN. "The amount of money poured into judicial campaigns has
skyrocketed, intensifying the need to re-examine how we choose judges in America. I believe it is our moral duty and obligation to restore the public's confidence in our judicial system."

The O'Connor Judicial Selection Initiative was created by the Denver-based Institute for the Advancement of the American Legal System.

The group's founder and director says the 79-year-old justice has long been a passionate defender of judicial independence.

"Justice O'Connor adds practical experience with a [federal] system that works, and she adds a perception of balance and moderation (in) that she has never been associated in the minds of the public with extremes on either side of the political ledger," said Rebecca Kourlis, a retired justice on Colorado's Supreme Court.

Kourlis senses increased momentum for change on the national level, prompted in part by an important U.S. Supreme Court ruling in June, arising from a judicial scandal in West Virginia.

In the so-called "Caperton Caper," the justices found a state judicial counterpart acted improperly when he refused to remove himself from a 2006 civil appeal, despite having received financial support during the campaign for his seat from the CEO of the key defendant.

West Virginia Supreme Court of Appeals Justice Brent Benjamin cast the deciding vote in favor of that company, and the high court ruled a perceived conflict of interest should have led to the judge's recusal.

"What the [high] court made clear in 'Caperton' was that judges are different, that campaign donations need to be thought of in a different way
when those donations are going to fund a judicial campaign," said Kourlis. "It put on the front burner those questions of propriety with respect to campaign donations to judges, and how that impacts people's perception of impartiality on the bench."

Nevada has a scheduled ballot initiative to make it the first state in 15 years to switch from voter-based to merit-based selection of judges.

Ohio, too, has begun rethinking is voter-based system. Chief Justice Moyer has been through four elections on the state high court. He finds many voters growing more skeptical of judges in the first place, a perception he says is fueled in part by negative ads from political and business interests with a stake in elections.

"The only way to eliminate the public distrust is to eliminate money from the process," Moyer told CNN from his Columbus chambers.

He is heading an effort that would give the governor and an independent review panel the power to select state judges. Voters could then decide a few years later whether to retain those justices. Alternately, he backs a system of public financing of judicial election campaigns.

Justice McCaffery knows his personality and personal story helped get him elected. An Irish immigrant, he used his law enforcement background to get a spot as a Philadelphia trial judge, where he once famously presided at the small "Eagles Court" underneath the old Veterans Stadium to deal with unruly football fans. The bald, burly judge with an easy grin was elected in 2007, and enjoys his work.

"I'm electable, not appointable," he told CNN during the run for his bench seat. "If I'm elevated, I am responsible to the citizens, not the
governor, not the folks who talk about merit selection," a system he calls "elitist."

The 19 states that held state supreme court elections in 2007 shattered previous campaign cycle spending records - $34.4 million in all - numbers which have increased steadily in the past decade. Nearly $20 million was spent on TV advertising in 2008 for the 15 states that held contested elections for 26 supreme court seats.

The idea of judges running for elected office may seem like a strange concept, but it is the law in 21 states that have some sort of contested system for top judges. Twenty-nine states and the District of Columbia - along with the federal system - appoint their judges, often under a merit selection system in which the governor gets the final say.

Many states choosing judges by merit also have accountability systems that include independent judicial performance evaluations and retention votes.

Supporters call that a transparent, unbiased tool for the public to essentially "judge the judge" on their record.

The political and financial stakes are enormous - from business groups dueling with trial lawyers over multi-billion-dollar punitive damage awards, to ideological groups sparring over abortion and gay marriage. With civil and criminal court dockets nationwide growing at a record pace, judges increasingly are taking on contentious social and business issues.

"Studies show that roughly 70 percent of the public believe judges are influenced by campaign contributions, and more than one quarter of judges agree," O'Connor told CNN. "This is alarming because the legitimacy of the judiciary rests entirely on its promise to be fair and impartial. A judge's sole constituency should be the law. If the public loses faith in that impartiality, then there is no reason to prefer the judge's interpretation of the law to the opinions of the real politicians representing the electorate."

O'Connor also noted the U.S. alone in the world elects its judges through popular elections.

Reform advocates say judicial independence only comes with public confidence in the system.

"People don't like the notion of cash in the courtroom, any whiff of any expectation that judges can be be bought is just not acceptable in our
country," said Kourlis. "People understand how important it is to have an impartial judge. From your own personal perspective, walking into a courthouse, you don't want to be asking whether that adverse party donated to that judge's campaign."


Filed under: Supreme Court
soundoff (15 Responses)
  1. OldUncleTom

    On the one hand, it is possible to have too much democracy, particularly where the electorate is ill-informed and easily led.

    On the other, having records of campaign contributions publicly available may be preferable to backroom envelopes; we all know that judges will receive donations from interested parties, regardless of the vehicle.

    December 15, 2009 04:09 pm at 4:09 pm |
  2. mc

    This is a really important issue. I hope it doesn't get swept under the rug.

    December 15, 2009 04:17 pm at 4:17 pm |
  3. sonny chapman

    In many states, Justices not elected by THE PEOPLE become appointed by the FAT CATS who run their state.

    December 15, 2009 04:20 pm at 4:20 pm |
  4. S.B. Stein E.B. NJ

    It would be nice if judges didn't need to act like politicians and run for election. That would stop the need for them to raise money and get caught in coflict of interest situations.

    December 15, 2009 04:25 pm at 4:25 pm |
  5. S Callahan In the mystery of the incarnation He is not only truly God, but now truly man. He comes from the infinite distance of the eternal heavens to finite nearness, wrapped in swaddling cloths and laid in a manger (Luke 2:7). The Creator becomes a cre

    Sometimes you have to wonder if CNN is the 'feel out' site on the issues for DC....next story, no longer elections for Judges..for your own good we will appoint them.......Hail Ceaser! just sayin'

    December 15, 2009 04:26 pm at 4:26 pm |
  6. Henry Miller, Libertarian

    I've always thought voting for judicial offices was kinda brain-dead–interpreting law really shouldn't be based on a popularity contest.

    Now, removing judges who make enough of what people consider to be bad rulings is a different thing, or who get overturned on appeal too much–that's probably a good idea. In the first case, they're probably ignoring what people in their jurisdiction consider fair and just; in the second case, they're probably ignoring or misinterpreting law.

    December 15, 2009 04:31 pm at 4:31 pm |
  7. Jane/Seattle

    This matter of money in politics is a crucial issue! Even the perception of dishonesty, nevermind the reality, is enough to influence voters against folks! Comprehensive Election Reform would handle much of this issue! Hmmm? How to get hardened money-changers to craft such worthy legislation?

    December 15, 2009 04:45 pm at 4:45 pm |
  8. Sara, Ohio

    There are scandals about certain judges here in my county over the years but people forget by voting time. My political party sends a ballet sample for me to consider, I guess hoping I can't attach name to scandal. I can absolutely believe the other political party does the same since a family member of mine is registered with them. Since many voters here seem to follow the politics of local, state, and federal government, they pay little attention to judges. I would deduce that many voters just vote their party's selection.

    December 15, 2009 05:03 pm at 5:03 pm |
  9. Sniffit

    "Just because she can "get down" with the people leaves a lot to be desired."

    Yep. Carter's totally off his rocker: there absolutelyl NO latent inmplicit racism involved here. None. Word and phrase choice has nothing to do with it and indicates nothing. It's all just made up a fairy tale.

    December 15, 2009 05:13 pm at 5:13 pm |
  10. Bob Pacific Grove, Ca

    O'Conner is the reason we had 8 insufferable years of G W Bush. Her swing vote to overturn the Florida State Supreme Court decision to count the ballots was a purely political decision. Her "conservative" philosophy of "states rights" took a back seat to political expediency....I wouldn't support ANYTHING this former jurist wants to do......

    December 15, 2009 05:33 pm at 5:33 pm |
  11. Jeff Brown in Jersey

    I wish she waited until Bush was gone before she retired, what a pity!

    December 15, 2009 06:11 pm at 6:11 pm |
  12. geo barker

    The three saddest words in the English language: Sandra Day O'Conor. Her coronation of Bush left thousands of Iraqis dead, civil liberties of Americans in shreds, and the world's economy in shreds. Please, Justice O'Connor, GO HOME AND STAY THERE. You've HELPED enough!!!!!

    December 15, 2009 06:41 pm at 6:41 pm |
  13. GJ

    I hope this initiative is successful. Elected judges should be an oxymoron. We need an independent judiciary.

    December 15, 2009 06:42 pm at 6:42 pm |
  14. Elizabeth Martin

    I believe that the impartiality of judges, as well as the public's perception of it is apt to be limited by the need to campaign and raise funds to be elected. I am not sure what is the best alternative, but I think a judgeship should not be simply a political appointment, either. Perhaps the League of Women Voters and other impartial organizations should vet a list of governor's nominees before he/she makes an appointment. Or, perhaps such organizations should submit such a list to the governor for a decision of whom to appoint. Maybe there are other possibilities. However, I oppose the election of judges at any level, and I want to see a less politically-influenced and money-influenced method of appointment developed.

    December 15, 2009 06:43 pm at 6:43 pm |
  15. Jeff Spangler, Arlington, VA

    Justice McCaffery is a dumb Philly cop who was consistently rated "unqualified" to serve on all courts by the members of the bar who knew him best. Elected judges is why attorneys will go to great lengths to get into federal rather than state court. Elections are "democratic" but they result in candidates about whom nothing is known by even dumber voters.

    December 15, 2009 06:51 pm at 6:51 pm |