By Justice Sandra Day O'Connor

Speech to the National Conference of State Legislatures

August 12, 2013

Type: Speech
Location: The National Conference of State Legislatures

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(Automatically generated)

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
It's really a treat to be here with you this year to open the National Conference of State Legislators—Legislatures, for the 2013 Legislative Summit.

And I thank you very much for welcoming me here today. As a former Arizona legislator, I really appreciate the chance to be among all of you, I know what you go through. And I have a lot of respect for the work that the National Conference of State Legislatures does to try to ensure quality and effectiveness of state legislative bodies, and the work that each of you do to ensure this in your own state. So thank you for being here today and letting me join you.

I'm going to talk about two things , things today that are near and dear to my heart In this connection. One is how do we get fair courts in our states? And the other is how do we increase civics education for our young people. Now, I've devoted a lot of my time since I retired from the Supreme Court to promote both of these concepts. And I'm going to talk first about fair courts and a few threats to that ideal. Then I'm going to talk briefly about how civics education can minimize threats to our system.

At the heart of the ideal of fair courts in our states, is the rule of law. And under the rule of law, we expect judges to follow the law as it is, not as it should be, or how we think it should be changed or even how the public thinks it should be.

Judges have to follow what in fact is the law at that time may have to decide the issue. And fulfilling that role, frankly, has a tendency to make judges pretty unpopular at times, you may have noticed in your own states, you can't please all of the people all of the time. And that's especially true for judges. They're constantly disappointing at least half the people that come before them.

Somebody has to lose. But it's even worse when it comes to public opinion, because the rule of law often requires judges to do the opposite of what the majority of the public at the time might want to have happen. At least in the hard cases, the better Judges are those who are willing to displease. Perhaps most of the people most of the time, believe it or not. But we have to learn to appreciate judges for what they do and not attack every judge who issues and decision with which we might disagree. And there's nothing wrong with criticizing judges, judges are people and make make mistakes, especially when they were ruling politically noteworthy cases. We expect the press in the public tomorrow to discuss the decisions made in the courts. But I think we can worry about the tenor of that conversation.

And it seems to me that discussion these days about courts and judges is a bit more politicized even at lower court levels. I see judges being evaluated like legislators are celebrated or censored for their positions on the issues rather than for their judgment or temperament. And I think this attitude does were present a serious concern for fair courts. And the reason isn't hard to see judges who are routinely attacked as activists or partisans by one side or the other. I hope they don't begin to think of themselves as belonging to one side or the other. Bad only increases the public's perception of partiality and I think a vicious cycle kind of road judicial impartiality and raise the stakes of judicial selection.

I think we should try very hard in all our states, not to increase the politicization of the process of selecting judges. citizens have to be taught to recognize that there are

Rate judges who do not share all their views about the law of the citizens in parts so that judges will try to be celebrated according to their judicial abilities, and not for their political credentials. And it is a problem that many in our country do think of judges as politicians in robes. And I'm concerned that some of the way we select our state judges contribute to that. Take judicial elections, for example. 22 states today, US contest contested elections to choose their supreme court justices.

And in my view, that need to raise money for judicial elections to compete in those elections, presents one of the greatest threats we have to fair courts, and that thread is increasing rather than diminishing.

The first judicial race that cost more than a million dollars took place about 30 years ago in Texas. At the time, we used to think of $1 million as an obscene amount for some judicial election race. But by today's standard, it's pocket change. From 2000 to 2009. fundraising by candidates for state Supreme Court's surged to nearly 200 and $7 million more than doubled the amount raised in the 90s.

In 2004, a single race for a district based seat on the Illinois supreme court costs just over $9 million. And you probably will not be surprised to learn that the winner of that race received his largest contributions from a company that had an appeal pending at the time before the Illinois Supreme Court.

Now I'm distressed that similar twins have recently been in states that have retention elections, which we've always argued are less than for concern, and retention alike elections, judges run on a post on their judicial records. And they're the most common feature of the what we call a merit selection process, a process that is designed to preserve judicial impartiality while ensuring public accountability. But even retention elections have become more costly and more politicized. In 2010. Justice is faced retention challenges in four states, and in those states, more than four and a half million dollars was spent. And that's more than twice as much as was spent nationwide on those races in the previous decade.

In a single state, Florida in 2012, this four state spending figure was surpassed. Florida spent $5.5 million that year in those judicial races. Now, judicial elections, powered by money and special interest, create the impression rightly or wrongly, that judges are accountable to money and to special interests, not the law. And the polls of the public consistently show that three fourths of the public believe that judges are influenced by campaign contributions in their decision making. Some studies suggests that this in fact may be the case that judges may make decisions in order to benefit supporters of past campaigns or attract supporters for future campaigns or above.

State Legislature s around the country have taken some steps to address these concerns, including moving from partisan elections to nonpartisan elections, and to establishing public financing for judicial races, strengthening campaign financing and disclosure laws and requiring recusal in cases involving campaigns supporters. Now those efforts are good, we should make them. But I don't think they address the underlying problem adequately. While we expect other elected officials to take the views of their campaigns supporters into account, our judges should never be or shouldn't be seen to be beholden to any constituency. That's not what we expect from our judges.

And the primary alternative to electing our judges is to have a process of what we call merit selection. With merit selection of judges. There's a commission of lawyers and non lawyers to screen applicants and to recommend the best qualified candidates for judicial positions. And I served in the Arizona legislature when my home state adopted a merit selection proposal, which we put before the voters for them to vote on. And merit selection was approved that year by the voters in Arizona by a pretty narrow margin.

And merit selection is also used in four supreme court justices in 22 states in the United States at present, but it has its critics, legislators and a handful of states are among those critics. And they say the process is dominated by the plaintiffs bar by lawyers representing the plaintiffs bar or by political elites, or something of that sort. I still think that it's better than the alternative of wide open, partisan election of judges. In recent years, there's been momentum in some states to do away with merit selection, and allow the governor to just appoint judges with legislative confirmation. That has happened in the court of appeals for judges and Kansas, and it's on the ballot this year bad system in Tennessee.

I'm concerned about that because I've seen the high caliber of judges that this process produces in Arizona and other states, but no to merit selection systems are identical. And there are ways to tweak existing systems in response to legitimate concerns.

We want to ensure balanced and representative nominating commissions and provide transparency and public input in the nominating process for judges.

But rather than throwing the baby out with the bathwater, I hope we will consider improving rather than just scrapping all these proposals for merit selection.

The law and criminal justice committee is having a panel discussion later this afternoon. That's going to discuss how we select judges in more detail. And the panelists include representatives of all three branches of government, and they'll share their perspectives on the qualities we most log in our judges, and how best to select them. I hope maybe, if you're interested in this issue as you I hope you are, you will join us for about criminal justice committee.

meeting later today. We expect people who serve in the legislative and executive branches of state government to be responsive to public concerns and to make political decisions accordingly. But however we select them, we expect members of the judicial branch of government to administer justice impartially deciding the cases solely on the basis of the facts and the law, protecting individual rights and constitutional guarantees, even when the decisions are politically unpopular. It is very important that the public understand this distinction between the judicial branch and the political branches of government. I think in the long term, the solution to politiciz—politicization, if I can pronounce it right, of our courts, is civic education.

I think that policy makers and lawyers should all be told about the importance of having fair and impartial courts. And they have to come to understand that the rule of law means that judges do have to sometimes take action that the public does not support in a case.

And to do that we have to bring meaningful civics education back into our classrooms. I don't know if you know this, but about 30 years after we adopted the constitution we have in this country, citizens began approaching state legislatures around the country and saying, look, we adopted a wonderful constitution and a form of government, but we need to educate you

Young people about how it works and teach them so that they understand it and they understand how to be part of the process as it goes on. And I think you can see today that we are not doing a good job in teaching young people about civics. today. Most states have stopped making civics education are required part of classroom studies in middle school and high school, and two thirds of Americans. We are told by Annenberg Public Policy Institute know at least one of the judges on the TV show American Idol. But only 15% can identify the Chief Justice of the US Supreme Court. Nearly three quarters of Americans can name The Three Stooges but that same number does not know the difference between a judge and a legislator. On a recent nationwide civics assessment test, two thirds of the students scored below proficiency. And not even one third of eighth graders could identify the historical purpose of the Declaration of Independence. And it's right there in the title.

Now, I think this, the thing that worries me a lot is that only about one third of Americans can identify the three branches of government, let alone say what each of them does. In the meantime, citizens learn about politics, from TV ads primarily. Is it any wonder if that we don't have an appreciation for judicial independence? And we're quick to criticize any judge that may have down an opinion that we think we might disagree with.

I think we are at this point largely because our nation schools are no longer teaching much civics education in the schools and state requirements to do that have disappeared. Our public schools were started to help produce citizens who had knowledge about how our democracy works, who's running it and how we how they're selected and how we're part of the process. And civics education was the original emphasis for creating public schools. In the 1960s, the typical US student took courses in American history and in government and in civics, to learn about citizenship and the rights and responsibilities that come with it. Today, you're going to look very hard nationwide to find any civics education going on in our nation's public schools. And we need to bring that back.

Not only that, we need to give programs that teach civics a bit of a makeover. Most students kind of find civics classes boring and dull, and it tends to be not one of their favorite subjects. Our civics courses, as they're taught don't seem to be teaching young people. That civics is about who we are as a people, and how we have an impact on the issues that we care about. And I know that the National Conference of State Legislatures shares these concerns and is working to strengthen civics education in our schools. I'm really impressed by the civic education campaign called "Trust for Representative Democracy" and for the number of students you've reached through programs like America's Legislators Back to School. Now, I think that's really important and I hope you will continue that effort.

And I hope you will also remember in the process that I've managed to get started a website called iCivics. You know, we have iPads and iPods and "i" everything. Now we have iCivics, and it consists of games that young people play to teach them about how our government works and how they're part of it. And many of our nation's states and schools are now participating in the use of iCivics and I hope you will take a look at it yourselves And see if you can't help get it in us.

I've managed by way of contributions made to it to keep the program free, schools do not have to pay to use it. And I've spent enormous time to promote iCivics, frankly because it has lesson plans and all the tools and online games that young people need to learn how our government works and to teach the students about it. And the feedback from teachers and students and the educational community has been very positive.

We know that iCivics is being used today in 50,000 classrooms, in all 50 states. We have 17 games on the website today, and more are on the way so I hope you will check it out and encourage its use in your state. And I think you have something called democracy kids on a website.

You have an American democracy interactive game. And I think that's like me preaching to the choir. But maybe it's more a case of great minds think alike. I hope so. But I want to thank you for inviting me to be with you today. And I know you share my conviction that we need fair courts in our country. It's an essential feature of our government. And we need quality civics education in our country. So don't let that disappear from the schools in your state. And I look forward to talking to some of you as we spend time here the rest of the day, how we can better promote these goals and thanks so much for having me here today. I'm really delighted. Thank you.