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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

June 2019

Downstream

= Subscribers only.
Sign in here.
Subscribe here.

Stonewall at Fifty

= Subscribers only.
Sign in here.
Subscribe here.

The Maid’s Story

= Subscribers only.
Sign in here.
Subscribe here.

Is Poverty Necessary?

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Is Poverty Necessary?·

= Subscribers only.
Sign in here.
Subscribe here.

In 1989 I published a book about a plutonium-producing nuclear complex in En­gland, on the coast of the Irish Sea. The plant is called Sellafield now. In 1957, when it was the site of the most serious nuclear accident then known to have occurred, the plant was called Windscale. While working on the book, I learned from reports in the British press that in the course of normal functioning it released significant quantities of waste—plutonium and other transuranic elements—into the environment and the adjacent sea. There were reports of high cancer rates. The plant had always been wholly owned by the British government. I believe at some point the government bought it from itself. Privatization was very well thought of at the time, and no buyer could be found for this vast monument to dinosaur modernism.

Back then, I shared the American assumption that such things were dealt with responsibly, or at least rationally, at least in the West outside the United States. Windscale/Sellafield is by no means the anomaly I thought it was then. But the fact that a government entrusted with the well-being of a crowded island would visit this endless, silent disaster on its own people was striking to me, and I spent almost a decade trying to understand it. I learned immediately that the motives were economic. What of all this noxious efflux they did not spill they sold into a global market.

Article
Stonewall at Fifty·

= Subscribers only.
Sign in here.
Subscribe here.

Early in the morning on June 28, 1969, New York police raided the Stonewall Inn at 53 Christopher Street, the city’s most popular gay bar. The police had raided Stonewall frequently since its opening two years before, but the local precinct usually tipped off the management and arrived in the early evening. This time they came unannounced, during peak hours. They swept through the bar, checking I.D.s and arresting anyone wearing attire that was not “appropriate to one’s gender,” carrying out the law of the time. Eyewitness accounts differ on what turned the unruly scene explosive. Whatever the inciting event, patrons and a growing crowd on the street began throwing coins, bottles, and bricks at the police, who were forced to retreat into the bar and call in the riot squad.

Post
The Wrong Side of History·

= Subscribers only.
Sign in here.
Subscribe here.

Left to the tender mercies of the state, a group of veterans and their families continue to reside in a shut-down town

Article
Downstream·

= Subscribers only.
Sign in here.
Subscribe here.

The squat warehouse at Miami’s 5th Street Terminal was nearly obscured by merchandise: used car engines; tangles of coat hangers; bicycles bound together with cellophane; stacks of wheelbarrows; cases of Powerade and bottled water; a bag of sprouting onions atop a secondhand Whirlpool refrigerator; and, above all, mattresses—shrink-wrapped and bare, spotless and streaked with dust, heaped in every corner of the lot—twins, queens, kings. All this and more was bound for Port-de-Paix, a remote city in northwestern Haiti.

When I first arrived at the warehouse on a sunny morning last May, a dozen pickup trucks and U-Hauls were waiting outside, piled high with used furniture. Nearby, rows of vehicles awaiting export were crammed together along a dirt strip separating the street from the shipyard, where a stately blue cargo vessel was being loaded with goods.

Article
What it Means to Be Alive·

= Subscribers only.
Sign in here.
Subscribe here.

My father decided that he would end his life by throwing himself from the top of the parking garage at the Nashville airport, which he later told me had seemed like the best combination of convenience—that is, he could get there easily and unnoticed—and sufficiency—that is, he was pretty sure it was tall enough to do the job. I never asked him which other venues he considered and rejected before settling on this plan. He probably did not actually use the word “best.” It was Mother’s Day, 2013.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

Gene Simmons of the band Kiss addressed Department of Defense personnel in the Pentagon Briefing Room.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today