Enhancing Judicial Independence, Accountability, and Selection for State Courts

The Fordham Law School program, “Enhancing Judicial Independence, Accountability, and Selection for the State Court Judiciary: A Program for Reform,” began with introductions and remarks by United States Supreme Court Justices Sandra Day O’Connor (Ret.) and Stephen G. Breyer. 

As she often has since retiring from the Court, Justice O’Connor spoke about the threat to judicial independence posed by judicial elections. “We’ve put cash in the courtroom, and it’s just wrong,” she said. She described a conversation with trial lawyers from a state with partisan judicial races, who told her that part of their trial preparation included finding out how much the opposing counsel had contributed to the assigned judge’s campaign and matching that contribution. 

O’Connor also described other recent threats to judicial independence, including the 2006 “J.A.I.L. 4 Judges” ballot proposal in South Dakota, which would have made judges subject to criminal penalties for unpopular decisions. “Judicial independence is a bedrock principle, and we’re losing it,” O’Connor said. 

In his remarks, Justice Breyer expressed concern that “half the country thinks judges decide cases any way they want.” He emphasized that educating the public about the role of courts and judges is just as important as addressing problems with judicial selection processes. 

The remainder of the program consisted of four moderated panels featuring academics, jurists, Fortune 100 general counsel, and representatives of court-improvement organizations. The program was part of the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown Law.  Attorney Norman Greene of Schoeman, Updike & Kaufman, LLP, in New York City organized and coordinated the conference.

The first panel laid the groundwork for the program by describing the core concepts of judicial independence, impartiality, and accountability and their importance for state courts and judges. The second panel considered the role of businesses in judicial reform, focusing on why reform should be a priority and how business leaders might be engaged in reform efforts. The third panel included Malia Reddick, AJS Director of Research and Programs and member of the Kansas Commission on Judicial Performance. The panel examined how judicial performance evaluation programs may be implemented to enhance judicial selection and retention processes. The fourth panel addressed the importance of education, both of state legislators and the public, in promoting reform and overcoming obstacles to change.

Program participants and attendees are now forming working groups related to the panel discussions. The working groups will develop recommendations for reform and submit their recommendations this summer. Seth Andersen, AJS Executive Vice President, also attended the conference.

Click here to view a New York Times piece on the program by Editorial Observer Dorothy Samuels.

Malia Reddick, AJS Director of Research and Programs, contributed to this article.