Justice O'Connor raises issues of judicial independence and civics education at State Bar's Annual Convention

Retired U.S. Supreme Court Justice Sandra Day O'Connor
Photo Credit: Dane Penland, Smithsonian Institution, courtesy of the Collection of the Supreme Court of the United States.

By Joe Forward, Legal Writer, State Bar of Wisconsin

May 6, 2010 – Former U.S. Supreme Court Justice Sandra Day O'Connor addressed the importance of judicial independence and civics education to the "continued vitality of our country" in her keynote speech today at the State Bar of Wisconsin's Annual Convention in Madison.

Introduced by Wisconsin Supreme Court Chief Justice Shirley Abrahamson, Justice O'Connor expressed her concern that elections and judicial campaigns are eroding public faith in the judicial system and talked about the "increasingly volatile judicial campaigns" in states across the country.

Justice O'Connor noted exorbitant campaign contributions to state judicial elections in places like Alabama, where nearly $5 million was spent in a race for a single supreme court seat in 2008. She said that 70 percent of the public believe that contributions influence judges, and the mere perception of impropriety "undercuts faith in the judicial system."

Noting that elections can still create good results, the broader problem calls for states to consider a merit- or appointive-based system, she said. Faith in the judicial system, she added, can only be maintained "if we keep out political influences."

Justice O'Connor reminded us "that there are some serious issues that we are all confronting in electing the judiciary," said Michael D. Leffel of Foley and Lardner LLP, Madison. "It's a hot topic in Wisconsin, and we are going to have to debate that issue."

Part of the problem, Justice O'Connor said, is that we are failing to impart the basic education needed for younger generations to understand the importance of a fair and impartial judiciary. She cited alarming statistics that demonstrate poor education on the democratic process and the branches of government, calling on members of the bar to help spread the message of civic education.

"In addition to reinforcing in an eloquent way the importance of the separation of powers, she charged us all to keep our role as counselors and educators," said Beth E. Hanan, a trial attorney at Gass Webber Mullins LLC, Milwaukee.

Justice O'Connor referred to her website - www.ourcourts.org - developed to educate middle-school students and provide a tool for teachers to use in teaching civics and the court system. It is an interactive website that incorporates learning games and other information.

"It is essential for people to understand her comments on the judiciary to the functioning of our government," said Thomas D. Zilavy of DeWitt Ross & Stevens, S.C., Madison. "Her efforts to encourage schools to incorporate [civic education] into their curriculum are absolutely outstanding."

Panel discussion

After Justice O'Connor's speech, she took part in a six-person panel entitled "Politicization of Judicial Election Campaigns: Whose Party is it Anyway" that discussed judicial elections and alternatives to them in Wisconsin. She voiced her opposition to judicial elections, noting the problems associated with campaign funding from outside sources.

Chief Justice Abrahamson, who favors judicial elections, commented that elections can embolden judges by providing legitimacy, but the public needs access to more information. Justice O'Connor said Wisconsin can do better in electing state court judges. Both agree that education is a key to understanding the court's role.

"Judges are not supposed to belong to anyone, that's the bottom line," said panelist Michael McCabe of the Wisconsin Democracy Campaign. "And the perception that they don't belong is just as important." The alternative, McCabe said, was to insist on election reform and demand full disclosure of funding sources. Outside influence on rulings, he said, "can be problematic whether elected or appointed."