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United States News Title: Sitting ducks on the bench As a Supreme Court justice, Sandra Day O'Connor exasperated critics by balancing on a reed-thin beam without planting her feet firmly on either side. But in retirement, she doesn't equivocate in defense of judicial independence. She has crossed the country warning that "spurious" attacks on the judiciary -- by politicians and other talking heads -- threaten judges' doing their jobs without fear or favor. When federal appellate Judge Danny Boggs said at a Friday legal conference at Las Colinas that physical assaults aimed at judges have come mainly from "the deranged," O'Connor underscored the safety concerns. "Every member of the Supreme Court received a wonderful package of home-baked cookies, and I don't know why, the staff decided to analyze them," she recounted. "Each one contained enough poison to kill the entire membership of the court." She also told the audience that she wasn't prone to revisit her votes but that she's having second thoughts about a 2002 ruling in Minnesota vs. White because it "has produced a lot of very disturbing trends in state election of judges." That 5-4 decision said states can't bar candidates for the bench from offering views on legal and politics issues. O'Connor wrote a concurrence in White to repeat misgivings about partisan election of judges that dated to her days as an Arizona state legislator. "The State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling," she wrote. "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges." O'Connor might be rethinking judicial speech limits, but not her dislike of electing judges. "Dare I say it? I've not been a great admirer of the Texas scheme," she said Friday. She as well as everyone else at the ABA-sponsored conference knew that just three days earlier, Dallas County voters had tossed out dozens of incumbent Republican judges based on party affiliation. Purely partisan sweeps are a natural byproduct of requiring judges to wear R's and D's on their robes. It happened in Tarrant County in the 1990s. That kind of bench-clearing inevitably pitches experienced jurists along with incompetent ones and brings in capable rookies along with some duds. Credentials become less significant than political labels, and upheaval occurs even when stability would better serve the public. And then there's the weird way that money infects races. Justice Don Willett, for instance, took in almost $800,000 in campaign donations just for the general election, on top of the more than $870,000 he collected for the Republican primary. Both times, he faced opponents who lacked his wealth of influential backers. State District Judge William E. "Bill" Moody of El Paso, the Democrat who walked across the state to try to unseat Willett, raised more than $178,000 for the general election. Once upon a time, that was big money. Willett's war chest bulged thanks largely to lawyers, lobbyists, home builders and other business types, which might cause your average person to wonder what they want for their investment. On the other hand, what did the $814,000-plus that Willett spent in the general election buy in electoral influence? Not quite 6 percentage points: Willett got 50.93 percent of the vote statewide, Moody 45 percent and Libertarian Wade Wilson 4.07 percent, according to the Texas secretary of state. Meanwhile, Sharon Keller -- presiding judge of the Texas Court of Criminal Appeals -- received 56.64 percent of the vote despite spending nothing on the general election, according to campaign finance reports. (She spent about $19,000 to beat fellow Judge Tom Price in the GOP primary.) Democrat J.R. Molina, a Fort Worth lawyer, reported spending almost $10,000 but ran a low-key campaign and still got 43.36 percent against Keller. I suppose we should be thankful that Texas doesn't mirror states highlighted by the Brennan Center for Justice at the NYU School of Law. In Georgia, for instance, one TV ad claimed that a sitting justice "overrruled a jury to free a savage rapist." Her opponent was said to have been "sued by his own mother for taking her money" and accused of threatening to kill his pregnant sister. In Nevada, an interest group said an incumbent "ignored your vote and violated the law." Her opponent was said to have accepted "thousands in contributions from two convicted topless club owners." And in Ohio, an interest group's ad for a Supreme Court candidate touted him as "a man of principle who led the fight against liberal activists to preserve Ohio's motto, 'With God, all things are possible.'" So much for real qualifications and the subtleties of, say, following the law. "If I could wave a magic wand, it would be to enable the states that want to do it to work toward initial appointment and maybe a retention scheme," O'Connor said. Appointment-retention systems pose their own challenges. Some politics still would come into play, even with nominating commissions. Retention elections could focus on unpopular rulings. But Texas already operates a version of appointment-retention: Eight of the nine elected Texas Supreme Court justices were appointed to at least one of the judgeships they've held in their careers. Can someone please wave that magic wand when the Legislature meets next year? Linda P. Campbell is an editorial writer for the Star-Telegram. 817-390-7867 lcampbell@star-telegram.com
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