Conference Considers Judicial Reform

Article excerpt

On April 8, 2008, judges, lawyers, business leaders, academics, and representatives of court reform organizations assembled at Fordham Law School to consider the most serious threats to judicial independence and discuss reforms to counter them. U.S. Supreme Court Justices Sandra Day O'Connor (Ret.) and Stephen G. Breyer were active participants in this discussion. The conference, titled "Enhancing Judicial Independence, Accountability, and Selection for the State Court Judiciary: A Program for Reform," was the fourth regional conference offered under the aus- pices of the Sandra Day O'Connor Project on the State of the Judiciary at Georgetown University Law Cen- ter. Attorney Norman Greene of Schoeman Updike & Kaufman, LLP in New York City organized and coor- dinated the conference. The O'Connor Project has also hosted annual national conferences since 2006. The most recent was held in Washington, D.C., on October 2, 2008, entided "Our Courts and Corporate Citizenship."

The program began with remarks from Justices O'Connor and Breyer that set the stage for four panel discussions to follow. The first panel explored the core concepts of judicial independence, impartiality, and accountability and their importance for state courts and judges. As she often has since retiring from the Court, Justice O'Connor spoke about the threat to judicial independence posed by judicial elections. "We've put cash in the courtroom, and it's just wrong," she said. She went on to describe a conversation with trial lawyers from a state with partisan judicial races, who told her candidly that part of their trial preparation included finding out how much the opposing counsel had contributed to the assigned judge's campaign and matching that contribution.

Justice O'Connor also discussed other types of threats to judicial independence, recalling FDR's 1937 plan to "pack" the Court with proNew Deal justices and the "Impeach Earl Warren" billboards of the 1960s. She noted that she had observed increasing numbers of attacks on judges during her final years on the Court, describing the 2006 "J.A.I.L. 4 Judges" ballot initiative in South Dakota as the most extreme. The Judicial Accountability Initiative Law would have amended the state constitution to strip judges of legal immunity for their official actions, allowing lawsuits and even criminal prosecution.

According to Justice O'Connor, "Judicial independence is a bedrock principle, and we're losing it." O'Connor asserted that judges should be held accountable for whether they adhere to the codes of judicial conduct and ethics rather than whether the public agrees with their decisions. She referred to state judicial disciplinary processes as an appropriate mechanism for ensuring this kind of accountability.

Justice Breyer described judicial independence as a topic of great interest to judges and of very little interest to everyone else. He expressed concern that "half the country thinks judges decide cases any way they want." Breyer urged that citizens need to have confidence that state judges decide cases based on the law and the facts, rather than because of political pressure from those who appointed or elected them.

Justice Breyer characterized the American justice system as more fair and independent than that of many other countries, but he cautioned that the confidence of the American people in the judiciary is waning. With the dramatic increase over the last decade in campaign fundraising and spending and special interest activity in judicial elections, it is not surprising that Americans are doubting the impartiality of the courts.

According to Breyer, there is no "magic bullet" to address these concerns, as threats to judicial independence and impartiality can arise in appointive as well as elective systems. But steps can be taken to improve judicial selection systems and to prevent the problems that exist from getting worse. Justices O'Connor and Breyer agreed that it will require the interest of concerned citizens in each state to talk about these concerns and take action to address them. …