UPDATE, 3:25 p.m.: Retired Justice Sandra Day O'Connor has just issued this statement in response to questions regarding her participation in "robo-calls" urging Nevada voters to support a ballot initiative on judicial elections: "I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way. In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.”
It began as an amusing story about a technical glitch in some automated phone calls that went out to voters in Nevada. But it has since turned into a discussion of judicial ethics involving retired Justice Sandra Day O'Connor and her passionate campaign in favor of judicial election reform.
A story in Monday's Las Vegas Review-Journal reported that a significant number of Nevada voters received so-called automated "robo-calls" with the voice of Justice O'Connor urging them to support a Nevada ballot initiative that would change the way Nevada judges are selected toward a merit selection/ retention election system.
The problem was that the calls went out at 1 a.m. insted of the intended 1 p.m. time. The group sponsoring the calls has apologized profusely and the marketing company that made the error has been fired.
But conservative commentator Ed Whelan saw another problem: "Do the ethics rules governing federal judges really permit a federal judge to robocall voters in support of a ballot initiative?" In a National Review Online entry Whelan noted that Canon 5 of the Code of Conduct for United States Judges prohibits them from engaging in political activity -- except as permitted by Canon 4, which allows judges to speak to the public and to legislators about legal matters and the administration of justice.
Whelan, who also is president of the D.C.-based Ethics and Public Policy Center and a former law clerk to Justice Antonin Scalia, wrote that O'Connor's personal advocacy of a ballot initiative is not the kind of legal discussion Canon 4 contemplates.
And then, by a strange coincidence, the U.S. Court of Appeals for the 9th Circuit on Tuesday handed down a decision in which O'Connor participated. (Retired justices are permitted to sit by designation in cases in lower federal courts.) The decision in Gonzalez v. Arizona struck down a 2004 ballot initiative in that state that required prospective voters to prove their citizenship. Referring to O'Connor, Whelan noted the ruling and said "it could help her outreach" to Hispanic voters in Nevada. Whelan stressed he did not think O'Connor voted in the case for that reason, but said it is "just one illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge."
The episode raises several ethical issues, including the fact that neither Canon 5 or Canon 4 nor any other part of the code of conduct for federal judges applies to Supreme Court justices, sitting or retired. At various times in different contexts, justices have said they abide by the code nonetheless, but the fact is that "as a technical matter, they are not covered," said Jeffrey Shaman, a judicial ethics expert and professor at DePaul University College of Law. "The idea was that Supreme Court justices are so visible that any misconduct could be taken care of through the political process."
But Shaman, along with another top judicial ethics expert, New York University's Stephen Gillers, don't see anything ethically wrong with what O'Connor has done in the first place in relation to the Nevada initiative. "She has a special expertise about these matters, and I don't see anything wrong with her speaking out about a matter of public concern like this," said Shaman, who asserts that O'Connor's advocacy falls in the category of speech about the administration of justice that the canons permit.
Gillers also makes the point that with a ballot initiative, the voters act essentially as legislators. "There is no doubt she could testify before the legislature" under the judicial canons, said Gillers. "Speaking to voters is no different."
Gillers and Shaman both also agreed that O'Connor's participation in a 9th Circuit case involving an entirely different ballot initiative in a different state does not create a conflict of interest. "That's diabolical," said Gillers. "Quite a stretch," said Shaman. O'Connor has thus far not commented.