Working the ref is a time-honored tradition. This election season, America's referees—judges—are coming in for a serious round of partisan hazing. The latest target is Sandra Day O'Connor. The immediate goal is to shut her up. The broader goals are more ominous.
Since she left the Supreme Court in 2005, Justice O'Connor hasn't spent her time golfing or mastering the Wii. She hears cases as a part-time federal appeals judge. She has pressed for more research on Alzheimer's disease, which afflicted her late husband. She has worked to improve civics education. And she's been sounding a warning about the growth of special-interest money in judicial elections, urging states to consider selecting judges not through elections but by appointment, which her home state of Arizona and more than 30 others do. (Disclosure: My group, Justice at Stake, works on issues of judicial fairness but does not support one method of selecting judges over another.)
It is this last role, trying to insulate courts from campaign cash, that has generated rage among a band of conservatives for whom O'Connor has never been sufficiently pure, and who claim that merit selection makes it harder to keep pro-plaintiff lawyers off the bench. "Take Justice O'Connor … Please!" writes Carrie Severino at the National Review. The American Justice Partnership, a National Association of Manufacturers creation, has dubbed her "Empress Dowager."
A telemarketing blunder in Nevada—where voters will soon vote on whether to adopt merit selection—gave O'Connor's detractors a pretext to pounce. Earlier this week, a programming foul-up sent robocalls from the campaign to change Nevada's system of judicial selection to 50,000 Nevada homes at 1 a.m. The calls included O'Connor's voice saying, "When you enter a courtroom, the last thing Nevadans want to worry about is whether a judge is more accountable to a campaign contributor or to a special-interest group than to the law." O'Connor apologized, saying she did not authorize the robocalls to use her sound bite, which she had recorded for a short video supporting the measure.
O'Connor's detractors accuse her of violating ethics codes for federal judges and demand that she stop hearing cases if she wants to take a stand on judicial elections. Ed Whelan, president of the Ethics and Public Policy Center, wrote: "If O'Connor wants to continue her unseemly politicking on state judicial selection, she should fully and unmistakably retire from the bench. Pronto." (The Washington Times even assailed O'Connor's call for Alzheimer's research as "inherently political.")
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.
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