When she retired in 2006, U.S. Supreme Court Justice Sandra Day O’Connor lamented that her successor Samuel Alito Jr. did not wear a skirt. In an interview last week with The National Law Journal, O’Connor said that, with a new vacancy on the Court, most people are “expecting and indeed hoping” that the next appointee will be a woman. “There was a little backsliding when I left.”
O’Connor, 79, also spoke about the departure of Justice David Souter, with whom she served on the Court for 16 years, and about the collapse of civic education nationwide.
The interview took place on the eve of the latest in a series of conferences she has coordinated at Georgetown University Law Center on threats to a “fair and independent” judiciary at the state and federal levels. The conference brought together judges, academics and lawyers from across the nation — including Solicitor General Elena Kagan and Judge Diane Wood of the 7th U.S. Circuit Court of Appeals, both prominently mentioned as possible Souter replacements.
O’Connor has spotlighted the increasing cost and contentiousness of state judicial elections, and urges states to scrap elections to restore public trust in the court system. Judges, she said at a recent American Bar Association conference in Charlotte, N.C., should not be viewed by the public as “just politicians in robes.”
At the same conference, O’Connor referred to the pending Supreme Court case Caperton v. A.T. Massey Coal Co., in which the issue is whether a West Virginia judge can be constitutionally required to recuse in a case in which a party before him raised $3 million for his re-election campaign. “It just doesn’t look good,” O’Connor said. In seeking the interview, we told her we would ask her about the Caperton case. The text of the interview follows, edited for clarity and length.
Thank you for speaking with us.
Well, I’m not going to talk to you about everything. I sure don’t want to talk to you about Caperton, because it’s still pending.
You did mention it in Charlotte I believe.
I mentioned it as an example of what happens with a lot of money going into judicial elections in states.
And that’s still a very major concern for you, right?
It certainly is.
Do you think it’s even gotten worse since your last Georgetown conference in 2007?
Well we have examples — certainly Texas is one, Alabama is one, Illinois with the $9 million campaign, and West Virginia and others. There have been lots of examples. It’s certainly no better, and we still have a substantial number of states that prefer judicial elections with generous financing by contributions.
Is it possible to make that case to move away from elections in states that want them?
Well, indeed it is! We need to try to keep making that case. I don’t know that we’ve been very successful lately, but I think we certainly make the effort. There’s some effort going on in Nevada. There was an effort in Tennessee to end the merit selection system there, and revert to the old election system. That’s still pending. Part of the state of Indiana, the Legislature voted to move back into elections. The governor vetoed it, but the Legislature might override it. We don’t know. But there are certain states where it is an issue, and the situation is somewhat fluid.
What are you hoping to accomplish with the conference?
I think the main goal is to make sure that we have a conference at the outset of a new administration in our government, to make sure there’s an awareness in the new government about some of the concerns that have been expressed, in the hope that that knowledge will provide some opportunities for the new administration to weigh in in constructive ways with the problems we’ve identified.
I know that one of the topics is diversity in the judiciary. What do you want to tell the new administration about this? You can guess what I’m hinting at with this question.
Well, we have a current vacancy coming up on the U.S. Supreme Court, and I think much of the country appears to me to be expecting and indeed hoping that there will be a woman to fill that slot. That would add a little measure of more diversity, I would say. There was a little backsliding when I left.
You and Justice Ginsburg have always said a wise woman and a wise man —
A wise old woman and a wise old man, at the end of the day, can reach the same conclusion.
That said, you believe there is importance to diversity.
There is. I think we have to remember that slightly over 50 percent of the population has two X chromosomes, and it doesn’t hurt to be able to look at the positions filled in our government and to see in fact that women are represented in more than token numbers.
What’s your feeling about Justice Souter leaving?
Well, I liked him very much, and still do, and I’m sad that he’s leaving. I issued a statement. I said, I think, that he was wise, witty and wonderful.
Back to the judiciary, I know in Charlotte there was a lot of talk about the budget crunch and what effect that is having on the courts.
By far, it is the worst problem facing the courts, the state courts. Most of the judicial work is in the state courts. The federal courts are a drop in the bucket — 390,000 cases versus millions and millions at the state courts, so the work is being done at the state level, and they’re short of money. The budgets of the state courts are being cut. It’s going to be extremely difficult for them to operate. I don’t know how they’re going to manage. And it’s also in the states where we see these judicial elections with very large campaign contributions. We have a lot of work to do.