During a panel discussion at N.Y.U. last night, retired Supreme Court justice Sandra Day O'Connor spoke against judicial elections–and refused to speak about that other election.
O'Connor favors "merit selection" of judges, meaning she believes governors and presidents should appoint them. Some states use that system, but others let voters decide who sits on their bench. (New York State is a hybrid: many local judges are elected, but judges on the Court of Appeals, for example, are appointed by the governor. )
Citing social science data, O'Connor argued that the presence of money and special interests in elections undermine public confidence in judges–and judges need the public's confidence in order to be effective. "Our gavels aren't that big and we can't swing them that hard," she said.
Judicial independence has been one of O'Connor's signature causes since retiring from the bench in 2006. Last night's remarks were part of a panel discussion sponsored by the American Academy of Arts & Sciences. All the panelists agreed with O'Connor's position, and it the panel did not take questions from the audience.
Bert Brandenburg, the Justice Department's spokesman under Bill Clinton, argued that the judicial election process simplified legal issues, and not in a good way. "It's check-the-box justice–are you with us or against us?" Brandenburg expressed anxiety about the future of justice. "America does like to elect its judges."
Like O'Connor, Dinh (who clerked for O'Connor) stressed the importance of preserving "public confidence in the judicial role."
O'Connor's crusade is ironic, in a way. Brandenburg encapsulated the argument against elected judges when he complained that they were "vulnerable to whatever the political wind is." As a justice, O'Connor herself was often accused of blowing in the political wind. Where her colleagues might fill more space elaborating grand legal principles, she would engage the details of the case in front of her. As a result, critics had an easier time attacking her more controversial votes–like upholding affirmative action, upholding barriers to abortion, and ending Florida's recount after the 2000 election–as mere politics.
Speaking of elections, the one that happened last Tuesday has the potential to shake up a few legal doctrines once Barack Obama starts appointing judges. But when I tried to ask O'Connor about it, she cut me off.
"I'm not talking politics," she said with a chuckle.