O'Connor Will Keynote Forum on Supreme Court Election Cases

In her continuing campaign to spotlight the way in which state judges are selected, retired Supreme Court Justice Sandra Day O'Connor will speak Jan. 26 at a Georgetown University Law Center forum on two Supreme Court decisions affecting the debate -- one of which has still not been announced.

The daylong conference, co-sponsored by Georgetown and the Aspen Institute's Justice and Society program, will focus on last year's decision in Caperton v. A.T. Massey Coal Co. and this term's still-pending decision in Citizens United v. Federal Election Commission. The Caperton ruling said the Due Process Clause can sometimes require a state judge to recuse in a case involving a major donor to his or her election campaign. Citizens United could decide whether bans on direct corporate spending in campaigns violate the First Amendment.

Citizens United involved the 2008 presidential campaign, and has been framed mainly in terms of federal campaign laws, so how does it affect state judicial elections? A brief filed in the case by 26 states notes that 24 states restrict or prohibit campaign expenditures by corporations, regulations that could be jeopardized by a ruling in the case.

Meryl Chertoff, an adjunct professor at Georgetown, director of the O'Connor Project on the State of the Judiciary, and co-director of the Aspen program, said that when organizers planned the forum months ago, they assumed the Citizens United case, which was reargued in September, would be decided by now. The Court has at least two opportunities to issue a ruling before the Jan. 26 conference.

Chertoff said both cases are placing renewed focus on the way state judges are selected. The goal of the conference, she said, is to discuss whether the rulings will lead to "desirable changes" such as moving toward merit selection instead of "nasty and expensive" campaigns for judgeships.

The title of O'Connor's talk is "Choosing (and Recusing) Our State Court Justices Wisely." Among the scheduled speakers are: Utah Chief Justice Christine Durham, president of the Conference of Chief Justices; former Texas Chief Justice Thomas Phillips, now a partner at Baker Botts; Rebecca Kourlis, former Colorado Supreme Court justice and now director of the Institute for the Advancement of the American Legal System;  Fred Wertheimer, president of Democracy 21; Bert Brandenburg, director of Justice at Stake; Jan Baran, partner at Wiley Rein; former Federal Election Commission chairman Bradley Smith, now a professor at  Capital University Law School; former American Bar Association president H. Thomas Wells Jr.; Karl Sandstrom, former FEC commissioner now of counsel at Perkins Coie; Carte Goodwin, chair of West Virginia's Independent Commission on Judicial Reform; and law professors Pamela Karlan and Roy Schotland of Stanford Law School and Georgetown, respectively. (Note: the author of this post will moderate one of the panels.)

UPDATE: A brief that deals more directly with the possible impact of Citizens United on judicial elections can be found here. Filed by Justice at Stake, the American Judicature Society, and several other judicial reform groups, the brief warns that overturning the precedents at issue in Citizens United would have a "profound and negative effect" on state judicial elections. It adds, "Unleashing corporate treasury funds on judicial elections also will distract judges from their most important job: guaranteeing impartial justice to the litigants who come before them."

Comments

[Dr. A. D. Jackson]

I note that some states have moved from elective judges, trial and/or appellate, to merit selection in the hope of keeping politics out of the judicial selection process. More recently the focus has been on money and funding for judicial contests.

Some critics say that as a practical matter what you have is "so-called merit selection", which may vary with state and locality. What I think they're getting at is that merit selection, unless safeguards are set in place, may do nothing but move politics to a different level. This seems a valid consideration.

Andrew