Why Sandra Day O’Connor fought to end the practice of electing state judges

John Yang:

Tomorrow, Sandra Day O'Connor, who died earlier this month at 93 will lie in repose at the Supreme Court, the setting for the accomplishments she may be best remembered for.

But her 2006 retirement for the court was not the end of her involvement in public affairs. She spent her last active years working to end the election of judges, which is currently the practice in 39 states. She saw it as incompatible with an independent judiciary. She explained it at a 2010 conversation with Judy Woodruff on the NewsHour.

Sandra Day O'Connor, Former Associate Justice of the Supreme Court of the United States: You can get decent judges by election. But what you get these days is large campaign contributions when you have elections. And I don't think we should have any cash in our courtrooms. It doesn't belong here. How can the judge be expected to be absolutely fair and impartial? If the donor is a forum and the court.

John Yang:

She worked on this project with the Institute for the Advancement of the American legal system at the University of Denver. Rebecca Love Kourlis is the former executive director of that organization. She's also a former Supreme Court justice in Colorado where we should add that since 1966, all state judges have been appointed.

Rebecca, when I've heard Justice O'Connor talk about this in the past, she always linked it to her disappointment, I guess you'd say or dismay in the practical effects of a decision in the court in which she was in the majority. Can you tell us about that?

Rebecca Love Kourlis, Former Exec. Dir., Institute for the Advancement of the American Legal System: She was involved in a case by the name of Minnesota versus white in which there was a determination by the United States Supreme Court that judges could not under the for First Amendment be constrained in their campaign speech.

The practical implication of that is that or has been that judges are free to actually campaign for a judicial seat too much as one would campaign for any other elective office without the constraints that the judicial Code of Conduct would otherwise impose.

John Yang:

So much of American politics over the last few years has played out in the courts the fight over the 2020 election. Earlier this year, there was record spending in a Supreme Court reason Wisconsin, North Carolina redistricting changed when the majority on the court changed. To what extent are events making the case for you?

Rebecca Love Kourlis:

Yes, actually, they absolutely are. But the problem is that changing judicial selection processes is constitutional in the various states across the country. And, of course, just for clarification, we're talking here now about state court judicial selection. Federal Judicial selection is a whole different ball of wax or can of worms, whichever way you want to look at it. But that's not something with which we worked with Justice O'Connor, and that is a United States Constitution issue.

So these are state by state constitutions, which are very difficult to change. But you are so right, the infusion of partisan politics where they don't belong, and the increasing polarity of partisan politics absolutely makes the argument that judges should not be in the middle of that.

John Yang:

Now, your organization and Justice O'Connor came up with a blueprint for how to achieve this. What are the major points of that blueprint?

Rebecca Love Kourlis:

It's a Four Point Plan, which is called the O'Connor Judicial Selection Plan. In the first instance, it involves choice of a panel of individuals by a nominating commission, variously appointed, depending upon the state you're looking at, but from different appointing authorities and with a bipartisan makeup, that commission tenders names to the governor of that state, who then chooses one of those individuals.

The individual serves for a provisional term is subjected to a judicial performance evaluation process, and then stands for what is known as retention on the ballot for a yes, no up or down vote from the electorate but with the benefit of having gone through sort of the job evaluation that the judicial performance evaluation interposes.

John Yang:

How much progress do you feel you're making on this issue?

Rebecca Love Kourlis:

Not much, to be entirely candid, not much. People are very vested in the notion that they want judges to be accountable. And to some extent, I get that you don't want robe judges who have no connection to their community or to the pulse of the community.

On the other hand, what that accountability looks like is really the issue, a partisan election where there's an R or a D or an I or a U next to the judges name, and where the judge has to campaign and express opinions. And as Justice O'Connor said in that clip, raise money. That's not the answer.

There are other ways such as this judicial performance evaluation process to achieve accountability without it invading impartiality. But it's a tough sell American electors want the capacity to yank somebody out of office if they think they're out of line or have some sense of control over the process. So it's a very tough sell.

John Yang:

As you worked with Justice O'Connor on this, did you get a sense of how important this was to her?

Rebecca Love Kourlis:

Oh, was incredibly important. There was an initiative on the ballot in Nevada in 2010. And Justice O'Connor worked the state. I mean, she literally made herself available for interviews and clips and almost pounding the pavement in an effort to communicate to Nevada voters how important this was, and it ended up losing 58-42, I think if my memory serves

But she was willing to go all out she was so passionate about trying to ensure that judges had the capacity to be impartial that the noises in their head or the angels or devils on their shoulders were not comprised of trying to elicit public opinion in some way or raise money.

John Yang:

Rebecca love coreless talking about working with Sandra Day O'Connor, thank you very much.

Rebecca Love Kourlis:

You're very welcome. Thank you so much.