Justice O'Connor argues for merit-selection; opponent calls elections democracy in action

Amelia Flood May 29, 2009, 7:23am



Former Supreme Court Justice Sandra Day O'Connor remembers when she ran for her first judgeship in her home state of Arizona. That experience – and her respect for the Founding Fathers – has made her a staunch advocate for reforming how states pick the men and women who sit as judges.

While most states, like Illinois, elect judges in increasingly heated and well-funded contests, O'Connor said she would like to see changes toward merit-based selection processes.

"Most people think judges are politicians in robes," she said in a telephone interview with the Madison County Record May 1.

Those in favor of judicial elections argue that merit selection systems don't remove politics and partisanship from the process – merit selection just makes it less accountable to citizens.

Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, said that the election system for judges is no worse than merit-systems and may make the judiciary more accountable.

"At a certain point, it's not that any model gets rid of politics," he said. "There are going to be politics at any way of selecting. I think that the claims that the merit systems take politics out of the selections is a false panacea or a false promise."

In Illinois there is a new idea afloat to pick judges in a different way.

The Illinois Civil Justice League is proposing that bi-partisan commissions in the state's judicial districts pick three nominees per judicial vacancy for voters to elect. The proposal has been submitted to the Joint Senate-House Committee of the state's General Assembly and the Illinois Reform Commission. No action has been taken on the proposal as of yet.

History lesson

Justice O'Connor said that when the nation was formed, the Founding Fathers determined that judges would be selected on merit and then appointed -- the process which is used now in our federal courts.

"They did not opt for the election of judges," O'Connor said. "It is not a system that produces consistently the kind of fair and impartial judges we should have. Is the state wiser than the Founding Fathers?"

However, she said, during the administration of the seventh President of the United States (1829–1837), Andrew Jackson, many states opted for election systems for judges.

In recent years, there have been many calls to return to merit systems. They come from grassroots organizations, academic institutions like the Brennan Center for Justice at New York University and from prominent members of the judiciary like O'Connor.

O'Connor: 'Uncomfortable' taking contributions

She won her first judicial election as Maricopa County Superior Court judge in Arizona in 1975, but the experience left the future United States Supreme Court Justice "uncomfortable" taking campaign donations from the same lawyers who would appear before her.

O'Connor said that judges who must run for their seats too often try to fit their rulings to "get votes."

High dollar judicial elections, such as the record-breaking Illinois Supreme Court race of 2004, also skew judges' behavior, O'Connor said.

"When the election is accompanied by large campaign contributions … the public just doesn't think the judges are going to be fair and impartial," O'Connor said. "It's not a good system. It's rotten. I just think our country today stands for better than that."

Before she was elected judge and while serving as an Arizona state senator from 1969 to 1975, O'Connor unsuccessfully tried to legislatively enact a merit-based judicial system. It wasn't until the issue was put to voters in 1974, that Arizona implemented a merit-selection system.

Debate grows

The debate between proponents of merit-based judicial selection and advocates of judicial elections grew louder, when in 2004 Illinois hosted the most expensive judicial race in the country.

Republican Lloyd Karmeier and his Democratic opponent Gordon Maag spent close to $10 million dollars in a grueling battle for the seat. Karmeier won.

O'Connor and others nationwide took notice.

"It was a wake-up call," O'Connor said of the 2004 election. She cited Illinois in an article on judicial reform in Parade magazine last year. She said it demonstrated how the judicial election system had broken down in Illinois and other states.

O'Connor is presently teaching law at Arizona State University Sandra Day O'Connor College of Law.

"My personal view is that Illinois would be best served by adopting a merit system, especially for the appeals courts and in the larger population centers," she said. "Potentially it would give the electorate – the voters of Illinois – a greater feeling of confidence in the judges sitting on the bench and who are deciding cases for them."

Alt: Electing judges is democracy in action

Alt says electing judges is democracy in action.

The merit-based system and others that take judicial selection out of voters' hands have their own dangers, he said.

"It's much easier if you have to deal with a merit commission than it is to influence a whole state-wide election," Alt said.

He said that another benefit to the judicial election system is that those running must be more open with their views on the law and the political and cultural hot-button issues that U.S. courts are called to weigh in on.

According to Alt, historically, Americans have looked to the courts for guidance on issues ranging from free speech to property rights to privacy. Some issues that start out in the political system, like abortion, end up before the courts. Judges may then end up making policy decisions instead of just legal ones.

"To the extent that questions are constitutionalized or the courts take on the matters, the political process is no longer able to weigh in," Alt said.

The large campaign contributions that critics of judicial elections often cite would not cease, Alt said. They would simply be refocused at the people selecting commission members.

"Contributions are kind of like water on a table," Alt explained. "If you shut off a particular channel, you'll just have a change in the direction of the flow."

Un-elected merit-based commissions can be influenced if enough of their members subscribe to a specific agenda, Alt said.

He said that special interest groups could just as easily try to stack commissions as they could field a candidate in a partisan election.

The only difference is that voters have the final decision in the judicial election system while state legislators or governors pick commission members, Alt said.

Alt also said that candidates who take the bench may only be those whose stances mirror the commission or governor selecting them, precluding those with different opinions from getting the chance at the gavel.

"You still have the politics, you still have the money but there's less transparency," Alt said. "We can't even have a frank and open discussion about how a nominee views the law."

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