Lay off Sandra Day O'Connor.

The law, lawyers, and the court.
Oct. 29 2010 5:52 PM

Lay Off Sandra Day O'Connor

We need judges to speak up, not shut up.

(Continued from Page 1)

But the federal canons of ethics explicitly permit and encourage involvement in activities concerning the law, the legal system, and the administration of justice. Ethics specialists like NYU law professor Steven Gillers note that the bar on political activity is focused on advocacy for candidates, not issues.

Still, hints of conspiracy have begun to spread. Over at Andrew Breitbart's Big Government Web site, the charge was that the after-midnight calls were intentional, staged to get media coverage. Gary Marx at the Judicial Crisis Network wants the Federal Election Commission to investigate because the same vendor that handled the calls has also been used by Sen. Harry Reid, even though a Republican consulting firm has been running the merit-selection campaign. Whelan has even suggested that the wording of O'Connor's letter notifying President Bush that she would step down from the court makes it unlawful for her to hear cases, because she's fully retired.


The latest insinuation—in a Wall Street Journal op-ed ungently titled "Sandra Day O'Connor v. the People"—involves O'Connor's role in a recent appeals court decision, which ruled that federal law supersedes an Arizona statute requiring voters to furnish proof of citizenship. (The decision was co-signed by a George W. Bush appointee.) Authors David B. Rivkin Jr. and Andrew M. Grossman say that "critics of" O'Connor argue that Hispanics and others in Nevada who like her ruling might vote yes on a referendum on merit selection "simply because of the Justice's endorsement." Having implied corruption, they distance themselves: "Justice O'Connor surely didn't hand down her Arizona decision for that reason." Mission accomplished, as the balloon floats off into the political winds.

Purging moderates isn't a new idea. But the attacks on O'Connor are just one part of a new wave of high-stakes judge-phobia  This fall, Iowa Rep. Steve King, a Republican, urged the ouster of "lawless judges" following a court order striking down the military's "don't ask, don't tell" rule. Oregon Rep. Peter DeFazio, a Democrat, vowed to explore impeachment against Chief Justice John Roberts, arguing that his decision in the Citizens United campaign-finance case proved Roberts perjured himself in his Senate confirmation hearing when he said he wouldn't be a judicial activist. These criticisms show a troubling willingness to undermine the independent role of our courts, even if they haven't reached the hysteria of the "Justice Sunday" rallies a few years ago, when, among other low moments, Sen. Tom Coburn's chief of staff said, "I don't want to impeach judges. I want to impale them!"

Sandra Day O'Connor will be fine. Her reputation for toughness and honesty is too strong for a drive-by political hit to tear her down. This episode ought to give her more reason to warn that politics is undermining the rule of law. To be sure, judges who speak up have to walk a fine line and be ready to consider recusing themselves when a case overlaps with a cause. The real concern here, however, is intimidation. We need judges in our public debates, because no one else can tell us what's going on from the inside of the courts. In fact, the political mugging of Justice O'Connor reinforces how hardball politics can undermine efforts to conduct a substantive debate over selecting judges.  Which brings us back to why O'Connor—and more than 30 states, red and blue—think there is a better way to select judges than through elections.

Like Slate on Facebook. Follow us on Twitter.



Talking White

Black people’s disdain for “proper English” and academic achievement is a myth.

Hong Kong’s Protesters Are Ridiculously Polite. That’s What Scares Beijing So Much.

The One Fact About Ebola That Should Calm You: It Spreads Slowly

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

A Jaw-Dropping Political Ad Aimed at Young Women, Apparently

The XX Factor
Oct. 1 2014 4:05 PM Today in GOP Outreach to Women: You Broads Like Wedding Dresses, Right?

How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

How Tattoo Parlors Became the Barber Shops of Hipster Neighborhoods

This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century

Oct. 1 2014 8:34 AM This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century To undertake a massively ambitious energy project, you don’t need the government anymore.
  News & Politics
The World
Oct. 1 2014 12:20 PM Don’t Expect Hong Kong’s Protests to Spread to the Mainland
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
Oct. 1 2014 6:02 PM Facebook Relaxes Its “Real Name” Policy; Drag Queens Celebrate
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
Brow Beat
Oct. 1 2014 9:39 PM Tom Cruise Dies Over and Over Again in This Edge of Tomorrow Supercut
Future Tense
Oct. 1 2014 6:59 PM EU’s Next Digital Commissioner Thinks Keeping Nude Celeb Photos in the Cloud Is “Stupid”
  Health & Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?