Meryl Chertoff
Okay, if I could ask the folks in the back or standing who plan to take seats to take their seats, and it can get started again. I'm pleased that we've been joined by some of our Georgetown Law School students. I'm Meryl Chertoff, the CEO and director of the Justice Society program and Aspen Institute and visiting professor of law here at Georgetown Law. I would be remiss if I let the opportunity go to say few words about some of our programs that are coming up in November 2010. The third Georgetown Law Aspen Institute symposium will take place and it will treat one of justice O'Connor's other interests and that is civics education. The November event is going to take place at the Roosevelt House of Hunter College in New York City and will be devoted to the subject of civic education, which Justice O'Connor has done so much on in her years since leaving the Supreme Court. I also want to mention that the Aspen Institute, each summer conducts a seminar in Aspen, Colorado the justice and society seminar in which we read classic works with political philosophy and jurisprudence. The seminar this year will take place July 13 to 19th if you're interested in further information will be found on the Aspen Institute website. This year, the moderators for the excellent program will be Barbara Rothstein, the director of the Federal Judicial center and Richard Briffault, a professor at Columbia Law School. And the same kind of psychological programming I hope we're providing to you today will be provided in a more expansive week long format. Going back to some first principles and and I urge you to give some consideration to taking the course this year or in another year. I now have the very distinct pleasure to introduce our keynote speaker.

Most of us in this room are familiar with at least some of the details of the life of Sandra Day O'Connor. raised on the lazy be ranch in Arizona, a Stanford Law School graduate and Law Review editor whose initial job offers would be legal legal secretary at the firm she applied to Justice O'Connor rose to prominence first as a prosecutor, then as a member of the Arizona State Legislature, Tennessee State judge and an historic moment when President Ronald Reagan selected her to join the Supreme Court of the United States, the first woman to do so. As a Supreme Court justice Justice O'Connor, while remaining always faithful to law and precedent, brought with her the experience and pragmatism of her days in the state legislature and her days on the ranch. Her opinions display a keen understanding of the importance of the separation of powers and the important role in our nation played by the states, which are in the words of her predecessor, Louis Brandeis the workshop of democracy.

Upon her retirement, Justice O'Connor turned back to that great interest in the States. She's become an outspoken advocate for judicial independence with a particular concern about the corrosive effects of money in state judicial races. She's spoken out in favor of game changing adjustments to the way judges are selected, and in particular, in favor of merit based selection in which a roster of judicial aspirants are submitted to the governor who makes his or her pick. And then after a term that just is presented to the people in a retention election. It is a system that is conducted if conducted transparently, is able to assure high quality judges and at the same time assure some element of accountability on the part of the judiciary. It is the system that Justice O'Connor helped Shepherd through the Arizona State Legislature when she was in that body. And it has served the state of Arizona well, at a time when the decision in Citizens United has cast a harsh light on the role of money in all kinds of political races. Justice O'Connor's post retirement work is more relevant than ever. It is often said of Justice O'Connor that she was the swing vote when she was on the High Court. But swing implies in in decisiveness or lack of commitment. And Justice O'Connor is anything but that. I think that her colleagues would say instead, that as a jurist, and as a human being, Justice O'Connor was the heart of the Supreme Court. She has held in the highest district in this nation and around the world. And we are privileged to have her with us today. Ladies and gentlemen, the Honorable Sandra Day O'Connor.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
And that was too kind of an introduction. We're just here to learn something today. And I'm right with you learning this morning about what's been going on here at the Supreme Court. Gosh, I step away for a couple of years, and there's no telling what's going to happen. Thank you, Marilyn, thank you, Georgetown Law School, and the dean and Aspen Institute for putting together a symposium in which I think all of us have a real interest today. You've heard some good panels on Caperton and Citizens United. So you're the experts now. And there's not much that I can or would try to add to the explanation of these cases, I want to take a step back. And think about how these two cases affect the threat to judicial independence. When our judiciary becomes intertwined, as it certainly is in the political process. I think these two cases should be a warning to states that still choose their judges by popular elections, rather than by some modified process, some of which we call merit selection, that these states need to at least think about whether changes are needed in the system, or weather, failing math, the damage to our judiciary and to our democratic system is going to become substantially worse. the independence of our federal judges was critical to our founding fathers. Now, Americans love to look back at the founding fathers we don't have any mothers we look back to but look back to those fathers. And we think they did an awfully good job and designing a system.

And two of the main grievances that our colonists listed against King George and the Declaration of Independence involve the absence of judicial independence in this country. The declaration church that the king had obstructed the administration of justice. by refusing his sent two laws are establishing judiciary powers. And he had made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries. And to safeguard against those abuses. The founders ensured that our constitution provides federal judges anyway, with tenure during good behavior, and a salary which can't be reduced during your office. At the Constitutional Convention, there was one delegate who proposed that federal judges should be removable by a more expedient means than impeachment. But he was shouted down by the other delegates, one delegate described the proposal is weakening too much the independence of the judges. Another said it was fundamentally wrong this subject judges to so arbitrary and authority. Now I mentioned this history, just so we don't forget, in RW about how we select judges, the founders of our nation saw fit to make federal judges independent of the other two branches, the two political branches, so that they would not be beholden to those two political branches. In their subsequent interpretation is judges of the laws and the rights of the citizens. The founders realized there has to be someplace where being right is more important than being popular or powerful. And where fairness, Trump's strength. And in our country, that place is supposed to be the courtroom.

Now, in 1968, the year after the Supreme Court struck down anti miscegenation laws in that case of loving versus Virginia, excuse me, a Gallup poll show that only 17% of white respondents in the region approved interracial marriage. That's a very small number. And it's hard to imagine that judges who could be easily defeated him election or removed through political devices would have handed down an opinion like that I don't think they would have. I'm not sure what the Gallup polls would have shown in the southern areas of this country, about integration of our schools racially, before the Supreme Court handed down Brown versus Board of Education. But I suspect that the citizens in large chunks in the country were equally hostile to that idea, as well. And these examples show that in order to dispense the law without prejudice, judges have to be assured they're not going to be subject to political retaliation for their judicial actions. But many states, in the United States today, don't apparently agree with this concept, or apparently with the founders of the Constitution, on mad idea. More than 80%, if you look across the country, at all state and local judges, I guess that includes justice is the base and the whole group. 80% of them have to win a political election, to gain the office or to stay there. I suppose it's not all that surprising, because the polls today also show that a majority of Americans say they want to elect their judges. You ask them, they say yes. But the point is that public support for judicial elections, is a system of the weakening of judicial independence in this country, it's not a reason for it.

Now, voters in states that elect judges, we know also are more cynical about the courts, they're more likely to believe that judges legislate from the bench, they're less likely to believe that judges are fair and impartial. And it's this distrust of the judiciary, that makes voters more inclined to elect their judges, rather than to look at another system of appointment. And if you don't believe as a citizen of voter, that judges can be fair and impartial. You might want to select your judges by a process you think will be most likely to result in a judge who's partial to you and your reviews, and can be unfair in your faith. So if you think judges legislate from the bench, then you're willing to invest a lot of money, try to get the legislation that you want. And if you're a political likely to appear before an elected judge, it makes sense to invest in that judges political campaign. So that's where we are. And given the stakes involved, it's surprising that a case like Caperton didn't come up sooner and effect.

We all know what the issue was that Caperton had to decide. And you can understand the reluctance of the court to get into it, because you don't want to subject the federal court to thousands and thousands of recusal emotional cases. And that was the risk if the court based on that. So the legal issue was tough. And today's panel on paper, did a good job with discussing the case. But one thing is certain. The events in that case just didn't look good, good day. And it's a sad environment when that situation comes up as a constitutional policy. Because it's so clearly bad policy for a state to allow that kind of thing to happen. No state can possibly benefit from having that much money injected into a judicial campaign. The appearance of bias is high and it destroys the credibility of any judgment favoring the political donors. Well, maybe the Supreme Court's decision in Cape Breton. Thank you. Yes, thank you will stop a situation as egregious as Caperton from happening again, I don't know. As you heard, Governor mansion, appointed an independent commission on judicial reform, to improve West Virginia's judicial system. And I practice participated in an honorary capacity in that and was honored to do so. But tweaking campaign finance rules or recusal standards, while helpful, just treats the symptoms of mixing politics and the judiciary. It does nothing to address the underlying distrust. That judicial campaigns and cases like Caperton breed. So whatever the solutions, we haven't seen a major change in West Virginia. And perhaps we won't see such changes elsewhere, either.

And no amount of election or recusal reform is going to remove the politics inherent in partisan judicial elections, because they're specifically designed to infuse power tics into the law. Elections are intended to make our courts responsive to electoral politics. And that's the flaw in the concept. If judges are subject to regular and competitive elections, they can't help but being aware of it if the public isn't satisfied with the outcome, in a particular case, often some criminal case, as you can imagine, it can hurt their reelection prospects. It's like, as some have said, trying to ignore the alligator in the bathtub. Now, it could hurt judicial elections are just difficult to justify in a constitutional democracy, in which even the majority is bound by the laws, restraints. So if our understanding or hope is that a judge is consistent digital currency is the law, not the electorate, then it's very hard to make that adjustment. And I think the threat to judicial independence is getting worse.

More and more money is flowing into judicial campaigns. You've heard some of that day. In 1980, Texas was the first state where the cost of a judicial race exceeded $1 million. That was considered a huge amount, but today it's pretty pedestrian. During the past election cycle, more than 5 million was spent on a race for a single seat on the Supreme Court of Alabama. We had someone here today from that state. Five years ago, there was a race for the Illinois Supreme Court that cost just over $9 million. After that race, Illinois justice Lloyd calm I are wondered allow allowed how people could have faith in this system, when such obscene amounts of money are used to influence the outcome of judicial elections. And he won the election. You can only imagine what the losing candidate and probably couldn't repeat it here.

Well, these funding arms races looked like they're going to get worse before it gets better. There is no question that the court's decision, which I joined back in 2002, in Republican Party of Minnesota v. White, has exacerbated the campaign spending spree. As you know, before quite there were canons of judicial ethics and many states, allowing candidates and requiring them to refuse to answer questionnaires concerning how they would rule on certain policy issues. In why the court held under the First Amendment states with judicial elections cannot prohibit judicial candidates from announcing their views if they choose to do so. Well, in a concurrence in that unfortunate case. I pointed out the states with judicial elections are just inviting problems like that, and maybe they ought to consider a different system.

A legally correct constitutional decision can have some consequences that aren't so welcome. States repealed their judicial campaign restrictions for fear they might violate White. That in turn emboldened interest groups to increase spending and to use questionnaires to pressure judicial candidates into publicly taking positions on controversial issues. And the interest groups can then put their money behind candidates whose legal opinions further to particular political agenda that the donor wanted to pursue. This rise in judicial campaigning makes last week's decision in citizens united a problem an increasing problem for maintaining an independent judiciary. I guess the legal issues are somewhat tricky, and the holdings I was glad we had some experts here who'd done the briefing and could tell us in a very articulate fashion, some of the consequences. It, the majority did overturn part of McConnell v. the Federal Election Commission case decided in 2003. And since I was one of several authors of that opinion, if you want my legal opinion, you can go read it. Now, judicial campaign spending has increased steadily, despite the campaign finance laws that are currently in place. As of last week, I think 24 states place significant restrictions on corporate independent expenditures in state elections. But now, perhaps some of those laws are insecure or invalid as a result of last week's decision.

I think today, we can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election. And maybe tobacco firms and energy companies have enough to win the next one. And I both sides, unleashed their campaigns spending money without restrictions, then I think mutually assured destruction is probably the most likely outcome. increasingly expensive and negative campaigns for judicial office, a road both the impartiality of the judiciary, and the public's perception of that. The long term business interests of campaign donors may suffer despite the Supreme Court's decision. And it probably is going to result as some have suggested in substantially increase disclosure rules.

Well, as any game theorist will tell you, relying on parties to voluntarily restrict their campaign contributions is risky. And in an arms race, the incentive to deviate and be the only big spender is too great. And it seems to me that the best way to stop the damage done by judicial elections is probably to go to a somewhat different system. And have states that haven't done so yet. At least take a look at a so-called merit selection scheme. There are problems with any scheme that you might devise for selecting judges, and merit selection schemes have their own problems. Indeed Missouri may modify or eliminate the system in Missouri, and that was the first state to adopt it. My home state of Arizona with my help when I was a legislator. It did go to a merit selection system back in the 70s. And we've had to make a number of modifications to that system in the intervening years.

But I used to practice law in my home state of Arizona, in front of elected trial court judges. And we had some that were truly an embarrassment to the state. And I've been there long enough and observed the consequences long enough in my home state to tell you that going to the merit selection scheme made an incredible difference in the quality of the judges in that state. Now it involves setting up some kind of a committee, a formal committee to give advice to the governor on appointments. Now, I think West Virginia is tinkering with that. And that's probably a good step.

In Arizona's case, initially, we had quite a few lawyers on the commission. Today, we have very few lawyers on it. We've gone to a predominantly citizens commission, but the non-lawyer members are very well qualified, and they can express themselves well, and it works okay. But at least we can say to the public, this is not dominated by lawyers. The other thing that's happened is that Arizona has opened all of their meetings of those advisory commissions to the public. And they ask, when there's a vacancy in a judicial office, for people who are interested in being considered to file an application and include their resume. All of those are open to the public. And if you have all the data open and the meetings open to the public and a predominance of lay people on the commission, there's not a lot for the public to complain about in that system. And, indeed, it has produced some excellent judges.

So I think there's no reason to think that states around the nation that still elect their judges shouldn't take a look at what can be done if, if they did so. I think three states today may, may ask voters to take a look at such a system. One is Nevada, one is Ohio, and one is Minnesota. Now, I don't know if, indeed, all three will proceed. It looks like Nevada's is already on the ballot, so we can expect that in that state. And maybe those states can serve as the vanguard for re-examination of elections more carefully. As the political ramifications of our problems can only be remedied through systemic change.

Now, I hope the attention given in this conference and in other venues around the country to Caperton and to Citizens United will speed the movement for re-examination in many states about how we select our judges. Caperton showed America how judicial campaign contributions can poison the system, and in invalidating some of the existing checks on campaign spending, the majority in Citizens United have signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.

So I think the time is now for the interest groups who have opposed merit selection for quite a while to do a little soul searching and see if we shouldn't re-examine it in some areas and give it a try and see what we can come up with. I think the opportunity to re-examine is now, and you here today are among the people who can best restore confidence in our judiciary. Many Americans don't yet recognize the importance of an impartial, fair, qualified judiciary, and they don't realize the threats to it imposed by judicial elections. And so the solution is easy: We have to tell people. We have to talk to them about this. We have to educate them. And by we, I mean all of us. Everyone in this audience, not just me. And as lawyers and other public figures and students, you're among the leaders in your communities. You really are. People will listen to you about the proper role of the judiciary as long as you speak out clearly and firmly and use the channels that the listeners use. Your voices need to be heard.

So regardless of how we select our judges, I think maybe all of us can agree that an independent judiciary is critical to all our citizens. We really need that. We need that, as David Souter put it, "one safe place." And that one safe place historically has been our courtrooms. Now, let's not sacrifice that. And you have to help us and speak out. And we can still have one safe place in our system for an independent, qualified judiciary.

Thanks so much for being here today, and I hope you will maintain your interest in this subject and will be spokespeople in the future for what we need to do. Thank you.