“Close to 20 states in the United States elect their judges in state elections. No other nation in the world elects its judges,” said O’Connor.
The issue was discussed during “A Conversation about Judicial Reform,” the inaugural event for the Allen L. Poucher Legal Education Series at the University of Florida.
A panel discussion hosted by the University of Florida Law Review featured O’Connor, U.S. Court of Appeals Judge for the 11th Circuit Rosemary Barkett and Florida Supreme Court Justice Peggy Quince.
The discussion was moderated by Martha Barnett, former American Bar Association president. More than 1,300 people attended the event at the Phillips Center for the Performing Arts.
When asked what she thought was the biggest challenge facing the judiciary, O’Connor talked about popular election of judges.
“We didn’t start that way. When our states formed, every one of them had a system like the federal one, appointment by the governor and maybe some confirmation process,” she said.
“Through the years, a populist movement rose, starting with Georgia and extending to other states. A number of states changed to popular election of judges and that has remained true today,” said O’Connor.
O’Connor cited a problem with it.
“It does not work well because it requires raising money for campaigns. You know who gives the money, the very people, either clients or lawyers, who are most apt to appear before the judge,” said O’Connor.
“It’s a terrible way to operate and it’s embarrassing that our country is the only country to do that. When I tell people from other countries about it, they are appropriately shocked,” she said.
O’Connor has become an advocate for civics education in schools.
“I think the biggest problem today is the lack of understanding by the public of the proper role of the courts in our country. That has somehow been eroded through time,” said O’Connor.
“Today, I see a lack of understanding in the country, generally. And certainly in the legislatures, at the national and state level, about the concept of the separate branches of government. There seems to be little understanding that the judicial branch is separate and independent,” she said.
“What the framers tried to create was a judicial branch where we could have qualified judges who could act independently under their powers to resolve issues of federal law,” she said.
O’Connor, the first female justice of the U.S. Supreme Court, retired in 2006 after serving the court for 24 years.
She is an advocate for civics education in schools and has created www.icivics.org to help young people learn about U.S. government.
“Our Constitution is quite special, and what people don’t quite remember these days is that it created at the federal level three branches of government,” said O’Connor, who noted that more people know the names of The Three Stooges than know the three branches of government.
“Each with independent powers in a sense. They have to interrelate with each other, certainly, but each has powers spelled out in the Constitution,” she said.
Barkett agreed with O’Connor and reflected on a recent trip to the Middle East on behalf of the American Bar Association.
“During the trip I became very conscious of two things. One is how we in this country keep talking about exporting democracy and how important it is to have democracy in these countries,” said Barkett.
“Once getting there and talking to people who want democracy, but at the same time (they) are very nervous about it. Because if you describe democracy purely in terms of majority rule, you don’t have a mechanism of protecting minorities in those countries. That’s the difference we need to focus on in terms of why an independent judiciary is terribly important,” she said.
“You cannot have democracy in the pure sense without protecting minorities,” said Barkett.
Education was a common theme in the message of all three speakers.
“This is a government of the people, for the people,” said Quince.
“But how in the world can you have a government of the people if the people don’t understand exactly what it is they have and why they have it,” she said.
O’Connor wrapped up the panel discussion with one last plea to the crowd.
“As citizens, do what you can to preserve all three branches of government. I care very much about the judicial branch. We have been blessed with having fair, qualified and independent judges, by and large,” said O’Connor.
“You are less apt to have that if they are popularly elected, so if you have a chance in Florida to get rid of popular elections for judges, you probably will have your chance, next time support it,” she said.
Former U.S. Supreme Court Judge Sandra Day O’Connor said Monday that Floridians should vote to eliminate popular elections for the judiciary the next time the issue appears on the ballot.