Justice O’Connor’s judicial-reform push followed regret over 2002 decision
Judiciary
Justice O’Connor’s judicial-reform push followed regret over 2002 decision
December 7, 2023, 12:09 pm CST
U.S. Supreme Court Justice Sandra Day O’Connor sits for her official court photo in 1982, a year after she joined the court. Photo from the Associated Press.
There are many ways to remember retired U.S. Supreme Court Justice Sandra Day O’Connor, who died Dec. 1 at age 93, according to an opinion column in the New York Times.
She could be remembered for being the first woman on the Supreme Court or for her opinions upholding abortion rights and affirmative action.
“As impressive as those achievements were,” wrote Jesse Wegman for the New York Times, “they have mostly been surpassed or reversed. What stands out for me is what she said and did after leaving the court.”
O’Connor wanted to protect judicial independence, and she “pursued the issue like almost no one else” after her retirement, Wegman wrote.
Seeking to reform judicial selection, O’Connor created a plan in conjunction with the Institute for the Advancement of the American Legal System at the University of Denver. The crusade remains an unfinished legacy, according to an article by Reuters columnist Jenna Greene.
Thirty-nine states still use some form of judicial elections, according to Reuters, which cited information from the Brennan Center for Justice at the New York University School of Law.
O’Connor and the IAALS had a four-point plan, discussed here in greater detail:
• A politically balanced judicial nominating commission selected by multiple authorities would recommend a limited number of nominees to a governor when vacancies arise.
• A governor would make the appointment from the list of recommended nominees, subject to a time limit. A default provision would govern what happens if a governor fails to act in time.
• Judges appointed to the bench would be subject to periodic evaluations by an independent entity to evaluate their command of the law, their communications skills, their docket management, their impartiality and their respect for others.
• Periodic retention elections would take place in which voters would have access to the evaluations.
The New York Times said O’Connor’s embrace of reform followed her expression of regret for her vote in the 2002 decision in Republican Party of Minnesota v. White. The 5-4 decision, with O’Connor in the majority, struck down a state law that banned judicial candidates from expressing their views on legal and political issues.
The decision “led to an explosion of partisan spending on judicial elections,” according to the New York Times. The most expensive judicial election in U.S. history, generating more than $40 million in spending, helped create a Democratic majority on the Wisconsin Supreme Court this year. The previous spending high in a judicial election was $15 million in Illinois in 2004, according to the Associated Press.
“Through her yearslong crusade,” Wegman wrote, “Justice O’Connor seemed almost to be doing penance for the 2002 ruling. The willingness to admit error does not come easily to judges, but by doing so, she was practicing the very independence of mind she insisted on.”
