ANNAPOLIS, Md. — Retired Supreme Court Justice Sandra Day O’Connor said yesterday the high court’s ruling on campaign finance earlier this year and a separate ruling on campaign funds received by a judge “ought to be a concern to every state that still elects judges.”
O’Connor, who is taking part in a nationwide push across state legislatures this year to end the practice of electing judges, contends partisan elections and the fundraising that comes with it damages the ability of judges to be impartial in court.
“I think we’ve had enough experience to know that it doesn’t work today and it particularly doesn’t work well today in light of decisions that the U.S. Supreme Court has handed down just recently,” O’Connor said during a panel discussion on judicial elections in Maryland.
O’Connor referenced the Citizens United v. FEC case, which reversed limits on spending by corporations and labor unions on campaigns. She said she believed the effect of the ruling could “filter down” to states that still elect judges.
“It can find its way into judicial elections as well, so I think it’s going to be a concern,” O’Connor said.
The retired justice also mentioned the Caperton v. Massey decision last year, in which the Supreme Court ruled that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias. The ruling came after a West Virginia Supreme Court judge ruled on a dispute that affected a company whose chief executive spent $3 million on the judge’s campaign.
“The independence of the judiciary is something that we all ought to care about very much, and you will protect it most by having a merit selection system, and the voters still get to decide after a period of experience with the judge on the bench: ‘Is this a judge I want to keep? Yes or no,’ ” O’Connor said.
There are 33 states, including Maryland, where at least some judges are elected. In Maryland, only circuit court judges face off against opponents in races that include campaign fundraising. About $3.9 million was spent in Maryland in judicial races in the last election cycle.
Lawmakers in Maryland are considering a constitutional amendment (S.B. 833) that would end the practice of partisan races for circuit judges. Although judges still would face voters every 10 years on whether they could keep their jobs, they would not run against other candidates.
Senate President Thomas V. Mike Miller, a longtime Maryland lawmaker, said he has dealt with the issue for nearly 40 years, and lawmakers have always had trouble making the change.
“Judges who have cases before them should not be taking money from lawyers and clients whose issues are to be eventually decided by them and that’s happening at the present time,” Miller said.
Miller, D-Calvert, said judges campaign “standing on the side of the roads, waving to the crowds.”
“It’s very demeaning and it shouldn’t happen,” Miller said. “I’m not certain that the law is going to pass this year, but it is certainly something that needs to be discussed.”