Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts.
Today, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections.
The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute’s 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O’Connor will chair.
O’Connor said the initiative would provide “information and useful support” to states considering a move away from judicial elections.
“No other nation in the world elects their judges in popular elections,” O’Connor said. “We are alone in that regard.”
Calling the initiative a “think-do tank,” Kourlis said the initiative was about moving beyond public education efforts. “This is all about, OK, in this particular state, what do we need to do to build a majority,” said Kourlis, who is executive director of the institute.
She said its first major test would be in Nevada, where a propsed constitutional amendment would replace judicial elections with merit-based selection. It would also provide for judicial performance evaluations and retention votes.
The advisory committee includes:
- Chairwoman: Justice Sandra Day O’Connor (retired)
- Justice Rebecca Love Kourlis of the Colorado Supreme Court (retired)
- Chief Justice Ruth McGregor of the Arizona Supreme Court (retired)
- Meryl Chertoff, director of the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown Law
- Diane Gates Wallach of Cody Resources, liaison to the institute’s board
- Mary Wilson, president of the League of Women Voters
- Chief Justice Wallace Jefferson of the Texas Supreme Court
- Chief Justice Thomas Moyer of the Ohio Supreme Court
- Ramona Romero, corporate counsel, logistics and energy, at DuPont
- Larry Thompson of PepsiCo
- H. Thomas Wells, past president of the American Bar Association
Justice O'Connor's public comments opposing judicial elections conflate two issues: judicial elections and campaign fundraising. Her concerns appear to revolve not around elections, but around the problems associated with partisan elections where judges raise money from private donations. There are many states with judicial elections where the races are also non-partisan and publicly-funded. Additionally, merit selection systems also have significant problems as well. For example, the committees that select judges can be dominated by political concerns, which rather than eliminating politics from judicial selection, merely hides it from public scrutiny.
There has been a lot of academic study comparing elected and appointed judges. The conclusions from decades of research are that there is not much difference between the two. Appointed judges write slightly higher-quality opinions, but balancing that out is the fact that elected judges work harder and write more opinions overall.
The judicial system in the United States most in need of reform is the federal judiciary. Most states have updated and modernized their judicial selection systems over the last 220 years. There have been no real constitutional updates to the institution of the federal judiciary, though, since 1789. Seventy percent of Americans believe that the federal judiciary is in need of reform.
FixitTogether.org is an organization set up to promote a set of four amendments to help fix our country. They advocate for a constitutional amendment imposing term limits on federal judges and giving voters the chance to vote up or down on every judge (the other amendments they support are for balanced budgets, congressional term limits, and a prohibition on unfunded mandates on the states). FixitTogether.org's strategy is based on encouraging state legislators to request a constitutional convention to propose amendments. Under Article V of the US Constitution, when 2/3 of the states have made such requests, Congress will be required to call such a convention. Given our current national problems, reform of the federal government is where our energies would best be spent.
Posted by: Bob Johns | December 11, 2009 at 12:18 PM