Ex-Justice O'Connor: Electing judges puts courts at risk

Former U.S. Supreme Court Justice Sandra Day O'Connor believes Washington and other states need to completely overhaul the way that state and local judges are selected for the bench.

O'Connor, the first woman to serve on the nation's highest court, told a Seattle audience Monday that because lower-level judges are elected they are not immune from potentially being swayed by campaign contributors. In Washington, as in about two dozen other states, judicial positions from state Supreme Court justice to municipal judge are elected positions.

"How we choose our state judges and how we decide whether to keep them in office or not is of critical importance," O'Connor said during a Seattle University School of Law conference. "We are now facing greater threats to judicial independence than we did in the past."

O'Connor said the threat to judicial independence is from corporations, attorneys and other interest groups that donate to campaigns with the hope of obtaining favorable rulings from the judge after the election.

"The result has been an arms race in funding, making it so a campaign for state judge is often as expensive, or more so, than a campaign for a U.S. Senate seat," O'Connor said.

The conference started with a nearly two-hour discussion centered on the U.S. Supreme Court's June decision in Caperton v. Massey Coal, which held that elected judges must step aside when large campaign contributions by interested parties create appearance of bias.

A number of panels and commissions have recommended that Washington do away with judicial elections in favor of a merit-based appointment system, said Mary Wechsler, chair of the Washington chapter of the American Judicature Society.

O'Connor cited multimillion-dollar judicial races in two states, Alabama and Illinois, in her argument against judicial elections. She said the first judicial race that cost more than $1 million took place 30 years ago in Texas.

The Caperton case and other cases involving questionable judicial campaign contributions "cast our whole judiciary in a negative light," O'Connor said.

She noted that the founders of the country believed it crucially important that federal judges have the freedom to make unpopular decisions without worrying about poll numbers. It was only after President Jackson's election in 1828 that he persuaded states to begin adopting elections for judges, she said.

While O'Connor said the majority of Americans believe that judges are influenced by campaign contributions, Wechsler told the audience that a poll by her group found that 82 percent of people surveyed found judges in Washington state to be "honest and trustworthy."

O'Connor believes the solution lies in an independent commission recommending a list of judicial candidates to a state governor, who will make the final decision.

O'Connor, a former state judge, assistant attorney general and member of the Arizona Legislature, was appointed to the Supreme Court by President Reagan in 1981. She retired in 2006 and has since been championing judicial independence and changes in what grade-school students are taught across the nation.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com

Information from The Associated Press

is included in this report.