Judicial Independence

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United States Supreme Court Justice Sandra Day O’Connor and Arizona Supreme Court Chief Justice Ruth McGregor join HORIZONTE host Jose Cardenas to discuss judicial independence.

José Cárdenas:
Good evening. I'm José Cárdenas. Tonight on a special Horizonte. The effort and challenge to keep our courts fair and impartial. Retired Supreme Court Justice Sandra Day O'Connor and Arizona Supreme Court Chief Justice Ruth McGregor join us in studio to talk about judicial independence. That's up next on Horizonte.

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José Cárdenas:
Throughout her career, retired United States Supreme Court Justice Sandra Day O'Connor has worked hard to educate the public about how checks and balances help guarantee our constitutional rights by assuring that courts can make fair and impartial decisions, free from political pressure. Even after her retirement, her message to protect the integrity and respect of the court's role under our constitutional structure is heard by many people today. Joining us tonight to talk about the message of judicial independence are retired United States Supreme Court Justice Sandra Day O'Connor and Arizona Supreme Court Chief Justice Ruth McGregor. Chief Justice McGregor, welcome to Horizonte.

Ruth McGregor:
Thank you.

José Cárdenas:
Justice O'Connor, welcome to Horizonte and welcome home.

Sandra Day O'Connor:
Thank you, thank you.

José Cárdenas:
We want to focus as we've indicated on the subject of judicial independence. But if I may, this week's Newsweek has this column by Anna Quindman commenting on your replacement on the court and she makes this statement, "There is now only a single woman on the court. Imagine the world if homes, businesses, schools had one woman for every eight man." She expresses her concern that your replacement was not a woman. Your observations on that.

Sandra Day O'Connor:
Well I share the concern I think the court is blessed a qualified person sitting I just wish he wore a skirt. I hate to see the percentage of women on the U.S. Supreme court drop by 50%, and I hope with time that will be corrected, because it is important for women on the Supreme Court. I don't think we need to stop with two.

José Cárdenas:
Back on the subject of judicial independence. This is something you have been involved with, even before you sat on the bench when you were an Arizona Legislator, and you campaigned or rather pushed provisions for merit selection. Tell us generally what is going on in the World today with respect to the tax on the judiciary

Sandra Day O'Connor:
We have seen an increase I think in the level of unhappiness in some segments of society with judges and courts. I think that may be triggered by some of the decisions handed down by the U.S. Supreme Court in some areas. For instance, abortion, in freedom of religion cases, some of those have triggered some attacks that are pretty frightening really.

José Cárdenas:
Perhaps some of the strongest coming from the Shiavo case.

Sandra Day O'Connor:
Yes the Terry Shiavo case produced some real attacks on the judiciary that was the case coming out of Florida. Where the young woman was not responding to treatment and congress passed a special law for that case giving federal courts special review over the case and when the federal courts upheld the state court determination that she could be removed from life support. It made some of members of congress very angry and they called for mass impeachments of judges. There are calls in congress today in some quarters for reducing funding for courts, for with drawing jurisdiction of the courts in several courts and in certain classes of cases. There are all types of proposals being made in congress that are designed to restrict or hinder the freedom of courts to act independently. And it was really the framers of our constitution when they structured three branches of government and tried to give each branch some authority and power over the other two. Now, the main check, the judicial branch has on the other two branches of government is the power to declare certain acts of congress or certain executive acts unconstitutional. Sometimes, of course, the check is in a softer way. When a statute is interpreted in light of constitutional values to say something that perhaps the drafter of the statute didn't realize would be said. Or ruling that a regulation or an executive act is not authorized by a particular statute. And it's those kinds of decisions that the framers wanted to give the courts the power to make fairly and independently without fear of retribution by congress if some act of congress were declared unconstitutional. And what we're seeing now are requests for retribution against courts that decide something that certain members of congress disapprove.

>>José Cárdenas:
Well, those who lead the attacks on the judiciary at least say that what they're doing is dealing with courts that are thwarting the will of the people. How do you respond to those kinds of challenges?

>>Sandra Day O'Connor:
Well, the father of our constitution was James Madison. And what he said was that an independent judiciary is an impenetrable bulwark against every assumptions of power -- that's putting it a little strongly. If you believe as James Madison did and as I do that courts are the important guardience of constitutionally guaranteed liberties in the constitution, liberties that you and I and each of us share in this country, it is up to the courts to enforce those. And I any we need not forget that if we're going to maintain a system of government in the form that the framers designed.

>>José Cárdenas :
Now, in Arizona we have merit selection at least at some levels. You were involved in this when you were a state legislator. Why is merit selection important?

>> Sandra Day O'Connor:
Well, one of the issues that people are concerned about today is how we select judges at the federal level. Federal judges are nominated by the president. And to be effective it has to be confirmed by the United States senate. For most district court judges and court of appeals judges, although not all, that process works fairly smoothly. But for members of the U.S. Supreme Court, those hearings get pretty intense, as we've seen recently. And sometimes the vote is quite divided. But in a majority of the states in the United States, judges are elected in partisan elections rather than selected by the governor or some other nonpartisan body. Now, when I was serving as a state senator in Arizona, I gave strong support to a change in Arizona's constitution putting it to a vote of the people to see if we shouldn't go in Arizona to a merit selection procedure instead of a partisan election of judges. And that passed. It is limited to the two major counties and to the appellate -- the court of appeals and the supreme court of Arizona. But under that merit selection plan, if there is a vacancy, then a bipartisan commission that is comprised of both lay people and lawyers together make a list of recommendations to the governor. Here is a list. And it includes people of both political parties. We think these people are qualified. Governor, if you wish to appoint one of them. The governor can reject all of them and get a new list or select from the list that's presented. Then, in order that the voters maintain some ultimate authority, there are appointments of those judges under merit selection. After a period of years the judge's name goes on the ballot and the voters get to say, do we want to keep judge so and so, yes or no. So the voters are able to maintain control in that fashion at the end of the day. And it works pretty well.

>>José Cárdenas:
And Chief Justice McGregor, as Justice O'Connor has said, this seems to serve us fairly well yet it is under attack at the legislature. Talk about this.

>>Ruth McGregor:
Every year we have seen a series of proposals. They generally do one of several things. Some of them would do away with merit selection altogether a will and have the governor nominate and senate confirm. Some would use our merit selection commissions to names to the governor but allow the governor to substitute. Some include confirmation and some include reconfirmation every time a term is up. The common thread that ties these all together is they all would add partisan politics to the reselection and retention system we have. That was the purposes were to try to get our judges out of partisan politics. I think it's important to the people of Arizona to remember that what it has produced for them is a very nonpartisan bench. It's a group of judges who don't have a political agenda. They don't come at the behest of any special interest group. They're prepared to be not only knowledgeable but impartial and neutral. Which if you come into court it is what you expect and what you really have a right to expect is that the judge will be neutral and not be biased towards the other side because that person or that person's lawyer gave more money to the judge's election campaign or something of the sort. So I think -- and the voters I think in Arizona agree and can see that merit selection has really improved the quality of the bench. It's also, I might add, has really increased the diversity of the bench in Arizona.

>>Sandra Day O'Connor:
I've lived under both systems. I've lived in Arizona a long time. I'm pretty old, you know. And I can remember the good old days or the bad old days when there were partisan elections for judges. In fact, when I first went on the superior court bench I had to run in a partisan election. Now, at that time it was lawyers appearing before the very judges who were running who would come up and give the campaign contributions. Now, what kind of a system is that? It's really kind of frightening. And you can see it today in some other states in the United States where there are partisan elections. And the results are pretty frightening. We don't want a return to that, I hope, in this state.

>>José Cárdenas:
Well, and what we're seeing is significantly more money than was ever contemplated or spent before, as I understand, $27 million in Texas in judicial elections.

>>Sandra Day O'Connor:
Yes. Frightening. And Arizona has avoided that. I hope that the citizens will learn about the system that we have and can recognize that we've ended up with a better bench than we used to have in the old days under this system.

>>José Cárdenas:
Chief Justice McGregor, one of the specific proposals is to not do away with merit selection but to allow the legislature to reconfirm every four years judges who are already sitting on the bench. What's wrong with that?

>> Ruth McGregor:
Well, I think you look to see what would be accomplished by this or what would be the effect. And if you have the senate confirm at the end of every term, it seems to me the only change that makes is to add politics to whether or not a judge should be retained. If the majority party in the senate is unhappy with what a judge has done in a one or two or three decisions as we sometimes see, then that judge can be turned out not because the person isn't a good judge, not because the person didn't uphold the laws in the constitution which is what we're sworn to do, but because the majority of the legislature might disagree politically with the judge. And that is, you know, really antithesis in what we expect.

>>José Cárdenas:
We saw the last election cycle some special interest groups targeting judges because they felt that they were too liberal on certain subjects, for example. How do you deal with that?

>> Ruth McGregor:
This is something new that's happening in retention elections. I think one thing we do is we make sure that the public understands what merit selection is about. Another thing we do is make sure that this is a very detailed evaluation done for every judge by an independent commission. They look at the judge's integrity and their knowledge of the law and whether they're polite in the courtroom and how they treat people. Then they evaluate the judges. A summary of their findings is in the voter information pamphlet. One thing we do is direct the voters attention to show whether or not a judge should be retained. The other thing I think we do is be prepared to show when a special interest group is trying to replace a judge and have a judge be on the bench who follows that special interest group's point of view. I think we have to do a very good job of getting information out to the public. We do know that the voters read the voter information pamphlet because we can see differences of results for the judges according to whether they had an unanimous vote from the commission to be retained or less than unanimous vote. But I think it's just essential that members of the bench, that judges from every level, from our municipal courts to our justices of the peace to our state court judges be out there and be talking with the public and be educating them about the court system and explaining what judges are supposed to do and how they should be nonpolitical.

>>José Cárdenas:
Justice O'Connor, your thoughts on how we could improve merit selection. You've had a hand in developing it. Do you see any weaknesses in the system we have now?

>> Sandra Day O'Connor:
The only concern always is that the retention election stage, that the public does have information on which to make informed votes on whether to keep some judge in office or not. Fortunately, I think unless you hear a lot of negative or read a lot of negative things about a judge, the voter will assume the others about whom nothing has said have be doing their job. I think that's a fair assumption. The voter needs to concentrate on the judges on whether there's been some criticism raised and they need to deal with that.

>>José Cárdenas:
One complaint that's been raised is that there are so many judges on the ballot, 46 this next cycle. How do you inform the electorate when you have that many people on the ballot?

>> Sandra Day O'Connor:
As Chief Justice McGregor has explained, there is a voter information packet that is distributed to all voters. And they need to take time to look at it. It's a lot to read. But if you're going to do your job as a citizen as a voter you need to take the time to look at it.

>>Ruth McGregor:
If I could add, for this cycle, for the first time those results of the performance review will be available on the website of the Arizona Supreme Court. We know people want to get information electronically so we're going to get it to them that way, too.

>>José Cárdenas:
There's another issue before the legislature with the issue of residing superior court judge. Right now as I understand it they are appointed by the Supreme Court.

>>Ruth McGregor:
That's right.

>>José Cárdenas:
What would the change be and what issues if any do you have with the proposal?

>> Ruth McGregor:
It's interesting that we have 15 presiding judges, one in each county. And a letter went to the legislature signed by all 15 presiding judges asking that that change not be made. I think our judges and our presiding judges recognize that this should not be a popularity contest. The presiding judge has a very difficult job. It requires really good administrative skills. We get a lot of input from all the judges on the bench before we appoint a presiding judge. But the skills are what we're really looking for. Because it is a difficult administrative job. So I thought it was interesting that all of the presiding judges asked that that change not be made.

>>José Cárdenas:
The proposal as I understand it, though, would be to have the other judges on the bench elect the presiding judge.

>>Ruth McGregor:
Right, yes. And the concern is that the judges really don't want this to be -- first of all they don't want to be voting against -- for one member of their bench and against another. The judges really don't like that approach to it. The judges also, their primary concern is having a presiding judge who has the skills necessary for that position. There's been no outcry or request from the judges in our superior courts to elect their presiding judges. So it's one of those areas where the system seems to be working very well. We do, before we appoint a presiding judge, we talk not only to the other judges but to the county attorney, the court administrators, the clerks of court, lawyers in the community, we get a lot of input about which person they think would best serve in that position. We don't just take a name out of thin air.

>>José Cárdenas:
Are there any other provisions or proposals in the legislature right now that are of concern?

>> Ruth McGregor:
Well, this year as has been typical there is a proposal that would take our court's rule-making authority and give it to the legislature. That's a problem from my point of view because the rules that govern our court proceedings number one again must be neutral. And secondly, it's really difficult to propose or adopt rules for a system that you aren't directly involved in. I remind the legislators that if we tried to adopt the rules that they followed for their committees and chairmen and so forth we probably would mess it up. That's my concern. I think it's an authority. Arizona has rule-making authority, our court by the state constitution. This is not something that just came about by practice. And it's something again that has worked very well I think within the courts. It's another area, incidentally, where we're really working to get more public input and comment and another place where we'll be making use of the Internet to allow comments.

>>José Cárdenas:
Is there a website people can go to?

>> Ruth McGregor:
The easiest thing is to go and google Arizona Supreme Court and that will take you to our website.

>>José Cárdenas:
Justice O'Connor, your tenure on the U.S. Supreme Court you have mentored many law clerks. A number of them will be in Arizona for --

>>Sandra Day O'Connor:
Over a 25 years span I've had 100 law clerks.

>>José Cárdenas:
Three of whom?

>>Sandra Day O'Connor:
Well, four of whom are now in Arizona. Two are on the Arizona Supreme Court, and one is practicing law here and one is on the faculty at the University of Arizona in the law school.

>>José Cárdenas:
Any concerns about an antitrust lawsuit?

>>Sandra Day O'Connor:
I don't think four out of 100 from my home state is too many.

>>José Cárdenas:
Justice O'Connor, what will you be focusing on in your retirement?

>> Sandra Day O'Connor:
I'm supposed to sit to a limited extent with lower federal courts. That typically would be courts of appeal around the country when they have a need for a visiting judge to come and help them. And I will do some of that as needed. But I hope not too much because I want to be able to spend more time in my home state of Arizona.

>>José Cárdenas:
And you'll be teaching?

>>Sandra Day O'Connor:
Well, I taught a few classes at the University of Arizona law school recently and I probably will do a little of that in the future. It won't be a steady job.

>>José Cárdenas:
Also, though, addressing these issues of the independence of the judiciary?

>> Sandra Day O'Connor:
I am very concerned about threats to judges both at the federal level and the state levels. And I intend to do what I can in my capacity as a citizen and former supreme court justice to speak out on these issues and to be involved in putting together a certain number of seminars and other groups to better inform the public about what's going on.

>>Chief Justice McGregor, we talked with Justice O'Connor about what may be behind the attacks on the federal judiciary at the national level. What's going on in Arizona? Why do you think we're having these attacks at this point in time?

>> Ruth McGregor:
I think there are a couple of things happening. I think that there is a small group of people -- I don't think it's a majority -- who really want our judges to make decisions on a political basis or in line with some special interest groups. And so all of the attempts, as I said, that's the common thread. All of the things being suggested would insert more politics or more influence from special interest groups into the selection and retension of judges. So I think as a general rule that's what's happening. Now, I'm sure it is related, as Justice O'Connor says, we have to decide difficult cases. One side wins and one side loses. So there are people unhappy with some of our decisions. I'm really comfortable that we always look at them in light of the constitution, both our state constitution and the federal constitution and the laws as passed by the legislature and by the congress. But everybody can't be happy with our decisions. And I think they forget sometimes that one of the primary roles of the courts is what Justice O'Connor described and that is to uphold the rights given by the constitution, which is the overriding voice of the people to uphold the rights that the constitution gives to the people in this country. And that's our obligation. And even if it angers people sometimes, that's what we are sworn to do.

>> Sandra Day O'Connor:
And there is no natural constituency for so called judicial independence. That's where you come in because you are using this half hour to help inform the citizens of Arizona what the concerns are and what citizens should be worried about. You can't just trust the courts to protect themselves. There's no natural constituency to do that. It takes an informed electorate. That's why it's important to have programs such as this to talk about the issue, it's important to have seminars and discussion groups and op-ed pieces and other things to better inform the public.

>> José Cárdenas:
Thank you both for appearing on Horizonte. I think you're done a great job in informing the public and we're very appreciative.

>> José Cárdenas:
If you want to see a transcript of tonight's program log on to our website at azpbs.org and click on Horizonte. That's our show for tonight. I'm Jose Cardenas. For all of us here at Horizonte, good night. Have a good evening.

Sandra Day O'Connor: Retired U.S. Supreme Court Justice;

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