Academic

The Brennan Center for Justice recounts a recent conference at Fordham Law School on state judicial elections which featured former Supreme Court justice Sandra Day O’Connor and Supreme Court justice Stephen Breyer.  At issue were the implications of state judicial elections for judicial independence and citizens’ views of courts. O’Connor kicked things off:

O’Connor said she remembered seeing  “Impeach Earl Warren” signs in New Mexico and Arizona when she was growing up, and said that in her final years on the Supreme Court, attacks on judges increased, including proposals for mass impeachments of judges involved in the Terri Schiavo case, or proposals to cut judicial terms short, or a particularly disconcerting movement towards “Jail4Judges,” a campaign to allow citizen panels to review rulings from the bench, with the ability to even imprison?as the name tantalizingly implies?those who made bad decisions. These developments were “very depressing,” she said, and so she decided to use her retirement to call attention to these attacks on judges.

“An independent judiciary is an essential bedrock principle, and we’re losing it.”  The reason was in part the fact that civics and government are not a requirement for high school graduation. “One third of Americans can’t name the three branches of government, but two thirds can name a judge on American Idol!” …..

She went on. “No other nation in the world elects judges.” She pointed to Georgina Woods, the chief justice of Ghana, sitting in the front row, as if to illustrate her point.

“Why are we tolerating this? What are we going to do about it?” Then, seeming to remember that the initial question posed to her several minutes before was “why did you convene this conference,” she added, “That’s why,” and sat back in her chair. The audience laughed and applauded.

Justice Breyer then provided some thoughts on the matter:

Breyer took the floor next. Keeping state courts impartial is a major issue, but try talking about it with people “and they’re asleep after five minutes.” He recounted a trip to Russia he had made when serving as an appellate judge for the First Circuit after he was appointed by Carter. Meeting with Russian judges from across the country, he was surprised to hear their accounts of “telephone justice,” when the party boss calls and tells judges which way to vote. “They asked me, ?do you have telephone justice in the United States,’ and I had to explain to them that no, the President wouldn’t call you. He’d be crazy to do that.”

More and more people today think that judges make decisions based on politics rather than the law, he added. O’Connor began to interrupt, then changed her mind. “No, no,” she said, waving her hand at him, “you tell them.”

He continued. “It’s extraordinary that three hundred million people have agreed to settle disputes using the law, not sticks and stones on the street, like they do in some places.”

Hat tip to ACS Blog.