Are judges being bought? Justices warn of slippery slope
Justices Sandra Day O’Connor and Stephen G. Breyer handed down an opinion Tuesday in New York: “We are seriously in trouble when it comes to our nation's courts,” O’Connor said, with Breyer concurring.
The two were seated not on the bench of the U.S. Supreme Court in Washington D.C., but at Fordham Law School’s Manhattan campus for a panel on judicial independence, part of the law school’s day-long panel series on enhancing the independence of judges in state courts.
Because these judgeships are elected positions, candidates for the position often wind up accepting campaign contributions from a variety of individuals and organizations, a setup both justices said they feared could influence the judges’ independence.
“We’re putting cash in the courtrooms and it’s just wrong,” said O’Connor, who retired from the Supreme Court in 2006.
Ninety to 95 percent of all laws are state laws, according to Breyer, but the courts at the state level receive little media attention. “It’s a topic of great interest to judges and of very little interest to anyone else,” he said, laughing.
The U.S. is unique in its system of electing judges at the state level. O’Connor said that while she recognizes that elections help prevent corrupt political appointments, campaign financing can have a corrupting influence on a judge as well. She recalled a lawyer in Texas telling her that he finds out how much opposing counsel has donated to the judge’s campaign and then makes a corresponding donation before trying a case.
O’Connor also recalled seeing signs that read, “Impeach Earl Warren,” the former chief justice, along the highway in Arizona years ago. And she also described learning about President Franklin Roosevelt’s proposal to forcefully retire judges once they turned 70 years old.
Still, O’Connor went on to say that attacks on judicial independence started to increase and become more severe as she prepared to retire. “Things were like nothing I had seen in my very long life,” she said.
The audience obliged her with a laugh before she launched into a list of what she views as encroachments on judicial independence. Among them: legislation to impeach judges for citing foreign court rulings, and an organization in South Dakota called JAIL 4 Judges, which stands for Judicial Accountability Initiative Law. The group sought to enact legislation that would allow people to sue a judge if they didn’t like his ruling, though the legislation was not approved.
O’Connor made similar arguments in an editorial published in The Wall Street Journal in 2006. Both justices cited partisan campaigns for judgeships and a lack of civics educations as major reasons for the encroachment.
The justices did not offer specific policy recommendations, but Breyer did call on the business community to be more active in campaigning for independence. He cited former Federal Reserve Chairman Alan Greenspan’s assertion that an independent judiciary allows for economic growth and opportunity as a reason for entrepreneurs to get involved.
“Half of the states no longer make civics and government a requirement and we’re a nation of immigrants with no basis for understanding,” said O’Connor.
Even though there were no explicit policy changes, lawyers and law students who attended the discussion were generally positive. “They’re trying to energize the profession,” conference attendee Norman Reiner said of the two justices.
Breyer told the group that while there is “no magic solution” to stemming the tide of encroachments on the judicial independence, advocating for better civics curriculum in high schools would be a good start.
“I know it’s a soapbox, but I could not believe it more,” he said.
O’Connor spoke up again. “I think that’s a good place to stop,” she said, bringing an end to the discussion. “I could not agree more.”
-- Emily Meredith
