Sandra Day O'Connor's Quest for State Judiciary Reform

Ryan James Girdusky

4/5/2012 12:01:00 AM - Ryan James Girdusky

While the nation is engulfed in the Supreme Court hearings on Obamacare, retired Supreme Court Justice Sandra Day O’Connor has been touring the country – most recently in Greenville, SC – to continue campaigning for her favorite pet issue: abolishing elections for state judges. Her quest, simply put, is to eliminate the right of the voters to decide their judges. She will not sleep, nor apparently let you; as evidenced by her 1am robocall to Nevada voters to gain support on this issue, until the most common method for selecting state judges is replaced by a method that is dominated by liberal trial lawyers.

Currently, 22 states use elections to choose judges, 13 states use the Missouri Plan, 5 use Democratic appointment, and 10 use a hybrid method.

O’Connor bemoans judicial elections, complaining that the amount of money spent campaigning for judicial races is "an embarrassment" to the country. However an empirical study conducted Professor Christopher Bonneau, a respected expert on judicial elections, demonstrates that despite O’Connor’s rhetoric against campaign spending, it is quite valuable to voters. Bonneau's study shows that campaign spending engages and mobilizes voters, and these voters are educated about the candidates and their records. The research rebuts all of O'Connor's bombastic language.

O’Connor prefers a method she refers to as a “merit system” – which many refer to as the Missouri Plan – for choosing judges. She boasts that she helped bring this "merit system" to Arizona as a state legislator. By using this terminology, O’Connor demonstrates her 26 year Washington D.C. pedigree. Naturally, use of the word “merit” invokes good feelings, and one may assume (erroneously) that this method permits those most qualified and deserving a place on the bench. However, nothing could be further than the truth. Just as The Patient Protection and Affordable Care Act would be more aptly titled the Destroy Healthcare, Destroy Small Businesses, and Raise Premiums Act, “merit system” would be more aptly titled “guaranty that liberal judges are on the bench and trial lawyers get their way system.”

The Missouri Plan, in contrast to elections, gives voters virtually no voice in choosing judges. In Missouri Plan states, an unelected commission conducts private meetings and evaluates candidates behind closed doors, then submits the names of candidates to the governor. The governor is typically required to choose someone off of the commission’s list to appoint to the court – even if he or she finds all the candidates undesirable. Beyond the lack of transparency and accountability, a major issue with this system is that most states that use it guaranty that a certain percentage of people on the commission are chosen by the state bar -- and the lawyers on the commission notoriously have a strong and disproportionate influence on the process. Professor Brian Fitzpatrick, who has researched state judicial selection extensively, concluded in one study that this method “may not remove politics from judicial selection so much as it moves the politics of judicial selection into closer alignment with the ideological preferences of the bar.”

Liberals have another famous proponent of the Missouri Plan to help them with their cause: billionaire George Soros. The Open Society Institute, a Soros-funded non-profit, has spent more than $45 million promoting the nation. You don’t have to be smarter than a 5th grader to be skeptical when a Soros back group is throwing in money like that. States judiciaries are at the forefront of many of the most contentious and significant cases: 17 states had their redistricting altered or changed by the courts, several states have made decisions concerning gay marriage and gay rights, in addition to hundreds of tort and property right cases heard in state courts. While O’Connor idealizes the Missouri Plan, the devil is in the details. It is important for citizens to keep an eye on the plans to transform our state judiciary into a system where true justice is lost to a tyranny of black robes.

The best way to find out how state judges are chosen is to visit www.StateCourtsGuide.com.