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Sandra Day O'Connor Cites State Budget Crises
as Most Pressing Problem Confronting State Courts
CHARLOTTE, N.C., May 8, 2009—“The health of our entire legal system depends on our having a strong, appropriate state judicial system,” and yet “we are confronting greater threats to judicial independence than in the past,” former Justice Sandra Day O’Connor told state government officials from across the nation at a summit on the critical role of fair and impartial state courts today.
Because 98 percent of court cases are brought in state courts, not in federal courts, problems confronting state courts are especially critical, O’Connor said. Among those problems, she listed disagreement over how judges should be selected, overcrowded dockets, sentencing policies in view of prison overcrowding, and burdensome discovery.
The most pressing problem of all may be the sudden loss of funding for court operations, as states grapple with the budgetary impact of the recession, O’Connor said.
O’Connor was the keynote speaker at “Justice Is the Business of Government,” a summit sponsored by the American Bar Association and the National Center for State Courts that convened today and continues tomorrow in Charlotte. The event also includes legislators, attorneys general and other executive branch officials and judges from 34 states and three U.S. territories.
While debate over how to select judges and still protect courts from undue political influence “has been unremitting for so many years,” a relatively new and uniquely American threat is the “flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial elections,” said O’Connor. She cited increasingly expensive campaigns for state supreme court posts; $1 million in Texas in 1980, and since then $9 million in Illinois and $5 million in Alabama are examples.
The infusion of money is taking a toll, as the “public is growing increasingly skeptical of elected judges in particular,” she said, referencing surveys that show more than 70 percent of the public and even more than one-quarter of judges themselves are considerably more distrustful of their judges than they have been in the past.
The risk, said O’Connor, is that the public will perceive judges as “just politicians in robes.”
The Supreme Court is now considering an appeal from a West Virginia Supreme Court decision in which a state justice refused to withdraw from voting on a case in which one party had generated contributions exceeding $3 million to his election campaign.
“It just doesn’t look good,” she told her audience. “West Virginia cannot possibly benefit from having that much money injected into cases,” she said.
“The mere appearance of bias is enough to irreparably harm” public confidence in courts, said O’Connor.
Courts rely on the persuasiveness of their rulings, “the power of the quill pen,” for compliance with decisions, while the executive branch has police powers and legislatures have the power of the purse, she said.
But “a quill is nothing more than a feather.” It is crucial that the public maintain confidence that court rulings are “compelled by law” and not “just the scribbles of errant feathers blowing in the wind.”
With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.
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