Former U.S. Supreme Court Justice Sandra Day O’Connor suggested that judicial elections should be eliminated in Pennsylvania because contributions to those campaigns lead the public to perceive judges as influenced by campaign donors.
While Pennsylvania is the birthplace of American democracy, the state has departed from the U.S. Constitution regarding judicial selection, O’Connor said.
It is a "serious problem that so many people in our country think that judges are just politicians in robes," O’Connor said.
O’Connor was speaking at the 20th anniversary of the Philadelphia Bar Association’s conferral of the award given in the former justice’s name to a woman attorney with accomplishments as a legal professional and in mentoring other women lawyers.
The former justice spoke on two main themes: promoting the rule of law by promoting the quality of civics education and the issues that derive from judicial elections.
O’Connor cited the U.S. Supreme Court decision in Caperton v. A.T. Massey Coal in which a justice on the West Virginia Supreme Court of Appeals voted to overturn a $50 million verdict against a mining company whose chief executive officer had contributed $3 million to the justice’s campaign.
The 5-4 U.S. Supreme Court reasoned that there is a "serious objective risk of actual bias when the judge ruled on the case of his principal financial donor and our Supreme Court held, under the circumstances, the 14th Amendment due process clause required that the judge recuse himself," O’Connor said.
The Supreme Court also urged every state to adopt rules governing judicial recusals, O’Connor said.
While there is no way to know if a justice’s vote was affected by a campaign contribution, a campaign donation of that nature "gives the public a strong reason to doubt" the fairness of the justice system, O’Connor said.
The best defense to threats to judicial independence is a culture in which people respect the rules of law and the role of impartial courts in upholding the rule of law, O’Connor said.
O’Connor, who still sits on U.S. courts of appeals panels, said lawyers must use their legal knowledge and education to teach young people about civics.
Judge Marjorie O. Rendell of the U.S. Court of Appeals for the Third Circuit, a past Sandra Day O’Connor Award honoree, gave the Judge A. Leon Higginbotham Jr. Memorial Public Interest Lecture.
Rendell built on O’Connor’s theme of the importance of public education to argue for the importance of education in achieving equality in America.
Higginbotham, a legendary judge on the Third Circuit, argued that American anti-discrimination laws forbid employers from discrimination but do not require them to take affirmative steps to go beyond "old-boy networks" and to set reasonable timetables for achieving "pluralism" in their workforces, Rendell said.
Higginbotham also argued that white Americans should ask within their "’honest internal communications system’" if they could honestly say if race has had nothing to do with their advancement in society, Rendell said. Only if the answer was absolutely no, Higginbotham argued, could one oppose affirmative action, Rendell said.
Affirmative action was not intended to be a stand-alone concept but only to be a short-term solution until other efforts like education led to equality in America, Rendell said.
But inequality still exists in the United States, Rendell said.
For example, Rendell said, blacks make up one-fifth of the unemployed in the United States, while only making up 13 percent of the population; white women only earn 77 cents on every dollar earned by white men; and 73 percent of black students and 78 percent of Latino students attend schools that are de facto segregated, Rendell said.
"One cannot be almost equal to another," Rendell said. "Either you are equal to another [or not]. I suggest inequality of education still exists and we must make it an issue of urgency again."
Lawyers must be active in the fight of equality, Rendell said.
"It is time to make life, liberty and pursuit of happiness equally available," Rendell said.
Pennsylvania Superior Court Judge Anne E. Lazarus is this year’s recipient of the Sandra Day O’Connor Award.
For a profile on Lazarus, see an upcoming edition of The Legal.