No Comment — September 17, 2009, 10:15 am

Justice O’Connor Crusades Against Judicial Elections, and Texas Again Provides Exhibit A

Few people in recent years have made better use of being a retired Supreme Court justice than Sandra Day O’Connor. Her recent appearance at a conference in Seattle contained some memorable lines about the way we make and keep judges. The Associated Press reports:

Retired Justice Sandra Day O’Connor spoke Monday at a Seattle University Law School conference. She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country. “It’s the flood of money coming into our courtrooms,” O’Connor said. “You haven’t suffered too much of this in Washington — but you will, if you don’t think about this and change it.”

At first blush, the idea of elected judges sounds like an extension of the notion of democratic accountability to the judicial branch. But America’s experience with this approach has been little short of catastrophic. Voters do not take the time and care to learn about judicial candidates. In fact, states that have an elected judiciary have recently experienced a sort of electoral food fight between two interest groups, neither of which puts a particular premium on justice. The first interest group consists of trial lawyers. The second consists of the business lobby, and particularly manufacturers, who are frequently called to account under attenuated notions of tort liability. These two groups pump hundreds of millions of dollars into the process, seeking to elect judges who are receptive to, or hostile to, notions of tort liability. This raw struggle to game the system is about special interest control of the judiciary.

It has led to a partisan supercharging of election contests as the Democrats and Republicans embrace their own special interest groups. It also undermines the reputation of the courts. Justice O’Connor went on to talk about Caperton v. Massey Coal, the recent 5-4 Supreme Court ruling that a judge had to step aside when presented with a case involving a major campaign donor, in terms that made clear that she embraced that ruling—and not the position of four G.O.P.-appointed justices in the minority. The Caperton decision provides evidence of the deep corruption that campaign cash presents. The reach of that corruption has spread even into the Justice Department, which during the Bush years used the artifice of “policing” campaign contributions to judicial races to attempt to game the system further in favor of the G.O.P.—as amply demonstrated by the bizarre prosecution of Paul Minor and a group of judges in Mississippi, prosecutions carefully keyed to judicial elections in that state.

Today’s newspapers provide another example of the corruption worked by elections. In Texas, the Court of Criminal Appeals—which is completely in the hands of elected Republican judges—rejected by vote of 6 to 3 an appeal from a man convicted in a double homicide in Plano. The appeal had little to do with the merits of the case. It focused on the fact, unbeknownst to the defense and the public at the time, that the judge who presided over the case was having an affair with the prosecutor who pressed it. Indeed, few dispute that this very high-profile case “made” the prosecutor’s career.

What’s the problem with a little nookie? The American Bar Association’s rules of judicial ethics contain this standard: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” To this should be added the rule that the judge must disclose to all parties any facts or circumstances that would raise such questions. In this case, the ethics rules required the judge to say, “I have a close relationship with the prosecutor.” However, the judge and the prosecutor decided to keep this secret. In legal ethics terms this is a big deal, because the judge would have a direct interest in the prosecutor winning his case and advancing his career.

The judge in this case went on to serve on the Court of Criminal Appeals itself, thanks to an appointment from then-Governor George W. Bush in 1997, and retired in 2001. The case appears to be a simple one requiring a new trial, but not according to the highly political conception of justice now dominant in Texas. All of the judges on the court are Republicans, and two-thirds of them decided no trial was warranted. Among this number were all three judges getting ready to stand for reelection, including the court’s disgraced but still serving Presiding Judge Sharon Keller. Their decision was to sweep the matter under the carpet, with a minimum of comment, in the process disregarding the undisputed fact-finding of the district court. In so doing, they gave the phrase “blind justice” a new meaning. Did the fact that the love-struck judge and prosecutor were elected Republican officials play some role in this decision? Did the fact that the judge later served with eight of the nine participating appeals judges on the same court play a role? No one can answer those questions with any certainty, but one thing’s clear: judicial politics is seriously distorting the quality of the justice being administered.

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