Former U. S. Supreme Court Sandra Day O'Connor Leads Efforts To Undo States' Voting For Judges. What Do You Think?

Effort Begun to End Voting for Judges
By JOHN SCHWARTZ

A group of judges, political officials and lawyers, led by the retired Supreme Court Justice Sandra Day O’Connor, has begun a campaign to persuade states to choose judges on the basis of merit, rather than their ability to win an election.

As a state legislator in the 1970s, Justice O’Connor helped Arizona create a merit selection system for judges. She is now chairwoman of the O’Connor Judicial Selection Initiative, announced this month by the Institute for the Advancement of the American Legal System at the University of Denver, to help make judges more than “politicians in robes,” as she has put it.

The group plans a new push to fight judicial corruption, and the perception of corruption that campaign money can cause, by encouraging state initiatives to scrap direct judicial elections. The work will include traveling from state to state, by invitation, to work with lawmakers, policy makers and advocates to build support for selection systems through public education, legislative counsel and political campaigns.

Rebecca Love Kourlis, the founder of the institute, acknowledged that getting voters to give up the right of direct election was “a hard sell,” but she argued, “You’re going to get a better caliber of judge over all.”

Merit systems — like the one that appointed Justice Kourlis to Colorado’s Supreme Court, where she served from 1995 to 2006 — generally involve a selection commission and regular “retention” elections in which voters can decide whether to keep their judges in power. Many states also have separate panels that report on judicial performance so that voters can go to the polls armed with information.

“This is all about an informed vote,” Justice Kourlis said.

According to the institute, 23 states and the District of Columbia have a commission-based system for at least some of their judges. No state has shifted to an appointive system in 15 years, but Justice Kourlis said the moment could be ripe.

Judicial elections have become “tawdry and embarrassing,” she said, and the Supreme Court decided an important case this year concerning judicial conflicts of interest that underscored the potentially corrupting influence of campaign contributions to judicial political campaigns, “which changes the landscape, from a legal perspective, and makes us hopeful that this is the time.”

Some, particularly within the business world, have expressed skepticism about merit selection. The U.S. Chamber of Commerce Institute for Legal Reform has taken no official position on judicial selection, but issued a report in October warning that some state judicial selection programs “have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

Nonetheless, efforts are under way in some states to switch. Nevada will vote in November on a constitutional amendment that would set up a selection process. State Senator William J. Raggio, Republican of Reno, said that voters rarely knew much about the judges, and that many candidates ran unopposed.

Ohio, too, is considering a partial move to selection commissions, and held a forum last month with judges and lawmakers to lay out the issues.

In the interview, Justice O’Connor recalled her early days as a lawyer in Arizona when she took a female client into court on a domestic matter.

“ ‘Ms. O’Connor, bring the little heifer in,’ ” she recalled the judge saying.

“That’s not real encouraging,” she said. “We can do better.”

Justice O’Connor said that no other nation elected its judges. “Nobody,” she said emphatically.

At international legal conferences, she said, “they’re all amazed” when the discussion of the American system comes up. “They say, ‘How can that be?’ ”