Sandra Day O'Connor: Where judges can be bought and sold

January 28, 2009

The story sounds just like a John Grisham novel: The CEO of a West Virginia energy company spent more than $3 million to help a relative unknown unseat the incumbent and become a judge on the state's Supreme Court. Later, that same judge, after refusing to recuse himself, cast the deciding vote on two decisions overruling verdicts against the energy company -- verdicts now worth $82 million.

Retired Supreme Court Justice Sandra Day O'Connor isn't shy about her opinion on the matter -- states should do away with judicial elections in order to restore independence to their courts, she said recently at an Economic Club of Phoenix luncheon, co-sponsored by the W. P. Carey School of Business and the Sandra Day O'Connor College of Law at ASU.

The plaintiffs in the West Virginia case -- who were awarded the $82 million verdicts in West Virginia's lower courts and then denied the verdicts by the state's Supreme Court -- are asking the U.S. Supreme Court to make it illegal for a state justice to vote on decisions involving people or groups that made significant contributions to the justice's election campaign.

What surprises O'Connor about the case, she said, is that the state allowed such bias into the courtroom in the first place. The argument shouldn't be about whether a judge should be forced to recuse himself from cases with litigants who financed his election campaign. Instead, O'Connor said, it should center on whether judges should be elected at all.

"I don't know what the constitution has to say about this or what the Supreme Court will do, but it strikes me as a sad state of affairs when a case like this becomes a question of constitutionality when it's clearly bad policy for the state to allow that environment to exist in the first place," she said.

Keeping the field level

"The basic precept of equal justice under the law requires that neither side of the dispute has an unfair advantage," Justice O'Connor said. "I think you might be concerned if you were in court litigating some issue in front of a judge who had been given a bunch of money by your opponent."

Alan Page, a National Football League Hall of Famer and Minnesota State Supreme Court Justice, compared a lack of judicial independence to how football fans would feel if, before their favorite team took the field, they learned that the officials for the game had a stated preference for seeing one side or the other win. "Or if the referees had to campaign for their jobs while being funded by the opposing team -- that's what we're facing today," said O'Connor.

Arizona does a good job of maintaining judicial independence through a system that selects most judges based on merit, O'Connor said. Yet a majority of states still elect state judges in partisan elections -- a fact that O'Connor said is "shocking."

The United States is the only country in the world that elects judges. "People around the world are shocked that is our system," O'Connor said. But judicial election was never the intention of the country's founders. "Originally states' governors selected judges with confirmation by the states' senates," she said. "But then the great populist President Andrew Jackson persuaded Georgia to begin electing its judges -- and many states, including Arizona, followed suit."

In 1974 -- when Justice O'Connor was herself serving in the Arizona State Senate -- legislators amended the state's constitution to mandate a judicial selection system for most judges. Today, the governor appoints appellate court judges statewide and superior court judges in Maricopa and Pima Counties from a list of nominees submitted by judicial nominating commissions. Once appointed, the judges are retained or rejected by the voters every four years for superior court and six years for the appellate courts.

Arizona's current merit selection system is one of the best in the nation, O'Connor said. Nevertheless, she said, some of Arizona's legislators continue to fight to go back to the old election system, "with all the money changing hands and the problems that produces."

"Don't let that happen," she cautioned.

"If I could do one thing to protect judicial independence in this country," O'Connor said, "it would be to convince those states that still elect their judges to adopt a merit selection system and -- short of that -- at least do something to remove the vast sums of money being collected by judicial candidates, usually from litigants who appear before them in the courtroom."

The importance of judicial independence

Justice O'Connor said that the threat posed by the "flood of money into courtrooms by way of increasingly expensive and volatile judicial elections" is huge. The issue extends far beyond the courts, as decisions that judges make influence government, businesses and individuals. If those decisions are swayed by money, O'Connor said, everyone loses. "A fair and impartial judiciary is absolutely fundamental to a properly functioning business and economic climate," she said.

Speaking after Justice O'Connor, W. P. Carey School of Business Dean Robert Mittelstaedt echoed the importance of judicial independence for business. "Economics always works," he said, "but it works best with the rule of law."

Some of the country's largest businesses seem to agree. A "friends of the court" brief filed with the U.S. Supreme Court by Wal-Mart, Lockheed Martin, Intel Corp. and PepsiCo in advance of oral arguments in the West Virginia case says that "There is a need to signal to businesses and the general public that judicial decisions cannot be bought and sold."

Impartiality among justices is also important, O'Connor said, because the country needs the two other branches of government -- the executive and legislative branches -- to follow judicial orders. "To achieve that, they need to have confidence in a fair and impartial judiciary." Which, ostensibly, is hard to ask for when judgeships can be bought.

Furthermore, the judicial system, O'Connor said, needs judges with the courage to decide against the majority. Whether it's going against popular opinion, or the political leanings of a prominent politician, or a particular business interest, judges that are appointed for their merit are more likely to have that courage, she suggested.

When asked about whether merit-based judicial selection circumvents the will of the people, O'Connor said that she advocates a merit-based selection system with periodic retention elections -- like Arizona's -- where voters can vote "Yes" or "No" to retain a sitting judge. "That ought to be plenty of power for the electorate," she said.

To find out what happened when judicial independence was brought into question by corporate money in John Grisham's latest novel, read "The Appeal." To find out how the oddly similar real-life story ends, stay tuned for the U.S. Supreme Court's ruling; the Court is scheduled to hear the case beginning on March 3. Yet no matter what her former colleagues decide, Justice O'Connor, for one, would like states to adopt their own merit-based selection systems, so cases like the West Virginia one don't happen in the first place.

Bottom Line:

  • Retired Supreme Court Justice Sandra Day O'Connor said that states should do away with judicial elections in order to restore independence to their courts.
  • Arizona does a good job of maintaining judicial independence through a system that selects most judges based on merit. But a majority of states still elect state judges in partisan elections.
  • "A fair and impartial judiciary is absolutely fundamental to a properly functioning business and economic climate," according to Justice O'Connor.
  • The judicial system needs judges with the courage to decide against the majority; judges that are appointed for their merit are more likely to have that courage.