Sustained Outrage

oconnor_s.jpgRetired Supreme Court Justice Sandra Day O’Connor, who has become an outspoken critic of electing judges since she left the bench in 2006, said Tuesday that the U.S. Supreme Court‘s recent rulings in Citizens United and Caperton “should be a warning to states that still choose their judges by popular election.”

Her comments came at a symposium at Georgetown University’s law school. Carte Goodwin, who chaired Gov. Manchin’s Independent Commission on Judicial Selection, served as a panelist during a discussion of the Caperton ruling.

Adam Liptak of the New York Times has coverage of the event here.

You can listen to O’Connor’s keynote address here, but Liptak certainly picked out a few choice quotes in his article:

“In invalidating some of the existing checks on campaign spending,” Justice O’Connor said, “the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”


“We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election,” she said. “And maybe tobacco firms and energy companies have enough to win the next one.

“And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.”

Taken together, Citizens United and Caperton do seem to be on a collision course. On the one hand, corporations are now free to spend unlimited amounts of money on elections, including those that elect judges. But outsize donations to a judicial candidate can be grounds for recusal.

As I’ve noted before, University of Tennessee law professor Penny J. White thinks judicial elections compromise the basic fairness guaranteed by the due process clause of the 14th Amendment.

But as the new rulings sink in, it’s a brave new world out there. Remember, there’s an unfinished term for the state Supreme Court up for grabs in 2010. The first reader who correctly predicts (in the comments section of this post) a corporate campaign donation of more than $100,000 to either Thomas McHugh or John Yoder wins a Gazette coffee mug.