Judiciary and merit selection


By Kathy Kemper – 02/02/10 06:47 AM ET

Few Supreme Court cases get as much play as Caperton v. Massey and Citizens United v. Federal Election Commission. The pundits, of course, all have an opinion. Then President Barack Obama referred to the decision in his first State of the Union address, arguing that Citizens “reversed a century of law” and “will open the floodgates for special interests.” This caused Justice Samuel Alito, who was in the audience, to roll his eyes, shake his head and mouth the words “Not true.” Predictably enough, his indignant moment was caught on tape and sent the blogosphere into conniptions.

Former Justice Sandra Day O’Connor offered a more subtle reaction to the court’s decision last week, during a symposium that was co-sponsored by the Aspen Institute and the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown Law. Discussing the current state of the judiciary with Wolf Blitzer, she joked, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.”

O’Connor, a passionate advocate of judicial reform, has some cause for concern. The decision in Citizens United has the potential to open up elections for state judges to derive further influence from special interests, unduly influencing a branch of government meant to be impartial.

Through the Project, O’Connor channels her energies these days toward maintaining a dialogue about the role of the judiciary. In her speech at the symposium, the former justice focused on the role that states can play in producing creative solutions to the problem of judicial elections. Employing the reasoning of the Founding Fathers that states should be laboratories through which the country can view the results of varying practices and policies, O’Connor highlighted her home state of Arizona as a model of judicial election reform.

In Arizona, merit selection is a way of choosing judges that uses nonpartisan commissions to investigate and evaluate applicants for judgeships. Each commission is composed of 10 public members and five attorney members, and is chaired by the chief justice of the Arizona Supreme Court. After two years of judicial service, those judges nominated by the commission and appointed by the governor are evaluated by the voters in a retention election. While this system still has its flaws, it an excellent alternative to other methods of judicial selection that can reduce judges to political candidates rather than unbiased interpreters of law. By using places like Arizona as a model for judicial selection, O’Connor hopes that other states may follow suit to independently improve their processes for selection.

Prominent guests at the event included: Laurence Tribe, a renowned constitutional scholar; Chief Justice Durham of Utah’s Supreme Court; Tom Phillips, the former chief justice of Texas’s Supreme Court; former FBI Directors William Sessions and William Webster; and the director of the Sandra Day O’Connor Project, Meryl Chertoff. The diversity of the audience testifies to how critical it is to maintain an independent judiciary that the American people can respect. Forums like the Sandra Day O’Connor Project are necessary to facilitate a civil debate over judicial issues.

Meryl Chertoff spoke to the purpose of the event: “We want judges who are fair and impartial, and the need to raise money for judicial races is antithetical to that. Judges should have fidelity to law as their chief loyalty. They should not have a debt of gratitude to contributors who may come before them as attorneys or litigants.” Sandra Day O’Connor’s leadership has helped bring the pressing issue of campaign finance reform to the forefront of judicial debates, and the Sandra Day O’Connor Project will undoubtedly continue to play a crucial role in the public discourse concerning judicial elections for a long time to come.

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About the author

Coach Kathy Kemper, known as “Coach” to many, is Founder and CEO of the Institute for Education, a non-profit foundation that recognizes and promotes leadership, civility, and finding common ground, locally, nationally, and in the world community.

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