O'Connor, Others Weigh in on Elections
February 1, 2010 – Less than a week after the Supreme Court issued its controversial 5-4 decision in Citizens United v. Federal Election Commission -- lifting restrictions on corporate spending in political campaigns -- retired U.S. Supreme Court Justice Sandra Day O’Connor and other legal luminaries came to Georgetown Law to discuss the impact of money on state judicial races.
Educating the public about judicial selection is a priority for the former justice, who since 2006 has led five conferences at the Law Center to address the need for an independent judiciary. While Georgetown Law and its co-sponsor, The Aspen Institute, had planned the conference well before last week’s decision in Citizens United, the timing of the event could not have been better.
“I step away for a couple of years and there’s no telling what’s going to happen,” O’Connor joked during her keynote address. While she left it to the panelists to discuss the particulars, the former justice said she hoped that the attention given to Citizens United, and the 2009 Caperton v. A.T. Massey Coal Co. case, would speed consideration of the need for an independent judiciary. In Caperton, the Court required a state appeals judge to step aside from a case where an officer of the corporate defendant had contributed a significant amount of money to that judge’s election campaign.
“These two cases should be a warning to states that still choose their judges by popular elections,” O’Connor said. “These states need to at least think about whether changes are needed in the system.”
National Public Radio’s Nina Totenberg served as a moderator along with the National Law Journal’s Tony Mauro and Pamela Harris of Georgetown Law’s Supreme Court Institute. Totenberg noted that Justice Anthony Kennedy -- who authored the majority opinion in both cases -- seemed to take “exactly the opposite position” in Citizens United regarding the threat of undue influence in congressional elections than he did in Caperton with respect to elected judges.
“What’s good for the goose is not good for the gander?” she said. “Are not the voters entitled to a fair evaluation of issues from Congress without undue money influence as well?”
Meryl Chertoff, co-director of the Justice and Society Program at The Aspen Institute, organized and opened the event. Panelists noted that while judicial elections may provide a sense of public participation in the selection of judges -- as opposed to a system where judges are appointed by the governor -- judges need to answer to the law, not to any particular group. Indeed, as O’Connor noted, judges have historically made courageous decisions in matters like school desegregation, decisions that were not always welcomed by the communities they served.
“We accept the notion in other branches of government that dollars purchase an expectation of a particular ideology,” said Rebecca Kourlis, executive director of the Institute for the Advancement of the American Legal System and a former justice of the Colorado Supreme Court. “Judges cannot be a part of that expectation … that’s anathema to impartiality and to the whole notion of the independence of the judiciary.”