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.

Sandra Day O'Connor. Click image to expand.
Former Justice Sandra Day O'Connor

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.)

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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.")

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