- The Washington Times - Friday, November 24, 2006

The latest critic of a Supreme Court ruling turns out to be the justice who supplied the key vote in its favor: Sandra Day O’Connor.

Addressing a legal conference in Texas, the former associate justice of the U.S. Supreme Court had some second thoughts about her opinion in Minnesota v. White back in 2002, which struck down that state’s restrictions on judges’ expressing their political views in campaigns for the bench.

The case was decided 5 to 4, and Justice O’Connor’s concurring opinion made all the difference. Renowned in her time on the court as its swing vote, she’s now swinging back. What do you suppose has changed her mind, or at least softened her opinion?

Well, the former associate justice has been on a crusade since she left the court. She’s concerned about threats to the independence of the American judiciary, as all of us should be. As usual, the threat comes from those who believe we the fickle people should be able to repeal unpopular decisions at will, or recall judges who deliver unpopular opinions, and in general subject fundamental law to the transient moods of ever shifting public opinion.

It may have occurred to Justice O’Connor, too late, that judges, too, can threaten the independence of the judiciary. Because when judicial candidates start holding forth on the issues of the day, they become like all other politicians, and the judiciary becomes just as politicized as the legislative and executive branches of government.

There’s a reason judges, like military officers, accept restrictions on their political speech: They have the personal dignity and political impartiality of their profession to uphold. When the judiciary is no longer considered above the passions and machinations of ordinary politics, neither is the law, and something of inestimable value is lost to a society that rests on the rule of law.

Justice O’Connor says she isn’t in the habit of revisiting her opinions on the bench, but it sounds as if she’s making an exception for this one. Minnesota v. White, she notes, “has produced a lot of very disturbing trends in state election of judges.”

She was doubtless referring to the unseemly electioneering, complete with vicious advertising, that has started to characterize judicial races across the country in the wake of Minnesota v. White.

Justice O’Connor long has opposed the election of judges. (After all, she was appointed to the judiciary, so that must demonstrate the superiority of appointed judges.) But in Minnesota v. White, she seems to have got carried away by her animus toward an elected judiciary. If some states insist on electing their judges, she ruled, they must allow judicial candidates to campaign on the issues as freely — and irresponsibly — as other politicians. States that elect their judges, Justice O’Connor as well said, deserve whatever happens to them — and respect for their law.

It was not a very thoughtful opinion, which is what happens when judges get carried away by their passions, in this case a prejudice against an elected judiciary. By freeing judges of limits on their speech, Justice O’Connor invited the demagoguery that may be the greatest threat to the judicial independence she so cherishes. Hers was a very logical decision in Minnesota v. White — too logical. Like any extreme of reason separated from experience, it lost touch with reality.

Here in Arkansas, there’s a perfect example of a judge who, by taking political stands on everything from the war in Iraq to the University of Arkansas’ basketball program, seems to have set out to systematically undermine the public’s faith in the impartiality of the judiciary. Rather than being above political passions, His Honor Wendell Griffen of this state’s Court of Appeals has come to embody them.

By now this Great Pontificator has handed down extrajudicial opinions on military tribunals, the federal government’s performance in Katrina’s aftermath, the suitability of John Roberts’ appointment as chief justice of the United States Supreme Court, the state’s minimum wage… and, well, one loses count. Suffice it to note Judge Griffen’s political comments have inspired more than 10 investigations by the state’s judicial discipline commission, plus at least one protracted court case.

Every time he makes one of his provocative speeches, the judge waves Minnesota v. White around like a permission slip to demagogue the issues as much as he likes. But courts do reverse course. Just as Sandra Day O’Connor seems to have changed hers. And couple of new justices have joined the Supreme Court since her time on the bench. There is hope that reason, the kind buttressed by experience, will yet triumph.

Paul Greenberg is a nationally syndicated columnist.

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