Monday, September 14, 2009
This evening's Washington Post reports on a speech by retired Justice Sandra Day O'Connor at the Seattle University School of Law. In the speech, Justice O'Connor voiced her disapproval of judicial elections. She stated that judicial elections produce a "flood of money coming into our courtrooms." Instead of elections, Justice O'Connor advocates the selection of judges by non-partisan commissions. The judges, at the end of their terms, could then be approved for retention by voters.
Justice O'Connor's remarks are not particularly shocking in light of her concurrence in Republican Party of Minnesota v. White. In that opinion, she stated:
We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects . . . Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public's confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.
While Justice O'Connor's position is not entirely new, the principle she is advocating may be more timely than ever. Though there is some scholarly disagreement, there appears to be support for the notion that America is becoming a more politically polarized nation. Between the increasing costs of campaign finance (also noted in Justice O'Connor's White concurrance) and increasing partisanship, a system of judicial elections may be especially vulnerable. With these twin pressures, even judges that are required to run non-partisan campaigns may use code words or other methods to reach highly partisan voters. If these judges depend on a highly polarized electorate for relections, it is not unfair to suppose that some of their decisions - especially those with political consequences - may be influenced by those pressures.
There is another issue. As I have previously stated, most judges do their utmost to uphold the law. However, judicial elections create the appearance of inflence even where it may not exist. This influence may open up the judiciary for more attacks from the political branches and the electorate. In the current political climate - where the label of "activist" judge is lobbed as an epithet - putting more distance between judges and the political process may help insulate judges from such attacks.
Justice O'Connor's remarks serve to remind us of the importance of an independent judiciary. For further reading on the topic, please consult Suzanne L. Cassidy, Judicial Selection: A Selective Bibliography, 56 Mercer L. Rev. 1019 (2005).