Sandra Day O'Connor: Stop Electing Judges

11/14/2009 05:12 am ET | Updated May 25, 2011

SEATTLE — The first woman to serve on the U.S. Supreme Court says there's a serious problem with the government in Washington and many other states: They elect their judges.

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."

Washington is one of about two dozen states that have elections for at least some judges, from trial courts to state supreme courts. Many judges in Washington are initially appointed to vacancies on the bench, and many run for reelection unopposed. But judges on the state Supreme Court frequently do face challengers.

The conference focused largely on questions surrounding the U.S. Supreme Court's June decision in Caperton v. Massey Coal, which held that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

Since 1934, a number of state panels have recommended that Washington do away with judicial elections in favor of a merit-based appointment system.

O'Connor said she advocates a system by which nonpartisan commissions select judges based on their merit. At the end of a judge's term, voters could decide whether to retain them.

Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about reelection, she said.

She noted that the founders of the country believed it crucially important that federal judges have the freedom to make unpopular decisions without worrying about poll numbers. It was only after President Andrew Jackson's election in 1828 that he persuaded states to begin adopting elections for judges.

Referring to cases such as Brown v. Board of Education, the 1954 Supreme Court decision that outlawed school segregation, O'Connor said, "Consider whether those hugely unpopular decision would have come to pass if judges had to stand for upcoming elections."

O'Connor was a state judge in Arizona before being appointed to the Supreme Court by President Reagan in 1981. She retired in 2006 and said she has devoted her retirement to trying to abolish judicial elections and to push for a new emphasis on civics education in public schools.

She was joined on a panel by Washington state Chief Justice Gerry Alexander, Texas Chief Justice Wallace Jefferson and other judges and lawyers. Alexander said that even though he was almost defeated in an expensive election in 2006, he supports the current system because it's worked well in the past.

"It's not perfect and it does need to address the problem of large amounts of money coming into the system without skewing it," he said.

Serving in a black robe and being addressed as "your honor" can "go to your head. It can be a humbling experience to go through elections," he said.

Jefferson said running campaigns is a distasteful, full-time job and doesn't even do much to educate voters about important issues. He said that in 2002, a newspaper declined to endorse him because he refused to put a campaign advertisement in the publication. Even after he had been in office, one poll showed that 86 percent of voters didn't recognize his name.

"You can't spend enough money to reach the voters," he said.