Nov 162007

Sandra Day O’Conner thinks it threatens judicial independence to have special interest groups pouring money into judicial campaigns. (WSJ: Justice for Sale : How special-interest money threatens the integrity of our courts.)

She says, “Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions.”

It’s good that somebody understands that our judicial system rests in large part on the willingness of the public to accept its decisions. That’s a point I was trying to make during the Clinton scandals. While that willingness can stand a lot of abuse, it can’t stand an infinite amount of abuse.

O’Conner proposes that states eliminate the use of elections to choose judges. I disagree with that for reasons I’ll omit here, but her point is correct that partisan elections can undermine confidence in the judicial system.

O’Conner also proposes that the government propagandize the voters on what makes a good judge. I guess that’s harmless enough, so long as people continue to understand that the government is its own partisan, special-interest group.

But she doesn’t say anything about the greatest danger to public confidence in the judiciary: the tendency of courts to overstep their bounds and make partisan political decisions that should be the domain of the legislative or administrative branches. When high courts not only overturn unconstitutional laws (which is their job) but order legislatures to pass laws to their liking, they are playing a partisan political role and should not be surprised that big money gets involved in the process of selecting judges.