“Gosh,” she said, “I step away for a couple of years and there’s no telling what’s going to happen.”
Justice O’Connor criticized the recent decision, Citizens United v. Federal Election Commission, only obliquely, reminding the audience that she had been among the authors of McConnell v. Federal Election Commission, the 2003 decision that was overruled in large part on Thursday.
“If you want my legal opinion” about Citizens United, Justice O’Connor said, “you can go read” McConnell.
Justice O’Connor gave her thoughts at a conference at Georgetown University Law Center on judicial selection in the aftermath of Citizens United and last year’s Supreme Court decision on judicial recusal, Caperton v. A.T. Massey Coal Co.
She has become increasingly vocal in recent years about doing away with judicial elections. Most states elect at least some of their judges; federal judges are appointed.
“Judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law’s restraints,” Justice O’Connor said Tuesday.
She added that last week’s decision was likely to create “an increasing problem for maintaining an independent judiciary.”
“In invalidating some of the existing checks on campaign spending,” Justice O’Connor said, “the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
In last year’s Caperton decision, the Supreme Court ruled that a State Supreme Court justice in West Virginia who had been elected with the help of millions of dollars in campaign spending from a coal executive should have disqualified himself from a case involving the executive’s company.
“These two cases,” Justice O’Connor said, referring to Citizens United and Caperton, “should be a warning to states that still choose their judges by popular election.”
Then she sketched out what the future might hold.
“We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election,” she said. “And maybe tobacco firms and energy companies have enough to win the next one.
“And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.”