Gavel Grab

Yesterday the Sandra Day O’Connor Project on the State of the Judiciary held its third annual conference in Washington, D.C. This year’s edition, entitled “Our Courts and Corporate Citizenship,” included a large audience of business leaders from around the country. Attendees also included Justices O’Connor, Stephen Breyer and David Souter.

In her opening remarks, Justice O’Connor honed in on the changing politics of judicial elections: “Justice is a special commodity. The more you pay for it, maybe the less it’s worth. There were times when in our history when justice was for sale, and frankly it wasn’t worth much,” she added, citing the legendary Roy Bean.

“The pendulum of judicial bias swings both ways,” she warned. “Once you hang the For Sale sign on the court house door, you can’t predict who the buyer will be. As plaintiff and defendant-friendly groups each race to pour money in to get their judges elected, the only result they’re assured of is that the rule of law will suffer.”

The keynote address, “How an Independent Judiciary Affects Market Functions,” was delivered by former Federal Reserve Chairman Alan Greenspan. He cited the U.S. Constitution and its separation of powers as key to the historical success of the United States economy. He closed with a warning: “Competitive markets cannot be sustained without the support of a large portion of society. The rule of law must be perceived as fair if these institutions are to receive broad support.”

In the opening panel, “Independent Courts as a Precondition to Open Markets,” Microsoft General Counsel contrasted America’s courts with foreign systems that are often less independent and stable: “One of the great beauties of the constitution is that it established the judiciary as an independent branch, and that judges are appointed for life. That’s one of the keys to having an independent judiciary.”

“I think that selection vs. election is not the issue,” said Kenneth Frazier, Executive Vice President at Merck. “The issue is whether or not they can be insulated” from political pressure. The judicial arms race, he added, “doesn’t inspire huge amounts of confidence in the public.” “I have a sense that the federal system will take are of itself,” added C. Boyden Gray, former White Counsel to the first President Bush. “I worry more about the state system; the elections campaigns that get run, the money that gets spent.”

In the afternoon, Ted Olsen, Solicitor General under the second President Bush, echoed Gray’s concerns: “We will not have confidence in the judicial system if we believe selection is on the basis of popularity, on willingness to rule a certain way, on the basis of ability to raise funds, on basis of perceived favoritism on a particular side of litigants….It is a race to the bottom, and it is getting worse.”

Thomas Gottschalk, former General Counsel of General Motors (and a member of Justice at Stake’s Board of Directors) called on states without meaningful contribution limits for judicial campaigns to adopt a recusal provision in their judicial codes, as the American Bar Association has recommended. In his conference paper he wrote: “In elections generally, and certainly in those for legislative and executive branch offices, it is expected – simply human nature and the way the political system operates – that the winners will tend to favor positions advocated by their contributors and take actions to benefit them.”

Tony Mauro at Legal Times blogged here on the conference.

Update: Washington Briefs also provided coverage of Justice O’Connor’s remarks.

Tags: Bailout Plan, Judiciary role in the Markets, Sandra Day O'Connor, Wall Street