For nearly 25 years Justice Sandra Day O'Connor helped shape the rule of law through the strict confines of opinions based on precedent. But speaking before a group of lawyers today, the retired Supreme Court justice wanted to wield power through a more unusual means: a magic wand.
No, O'Connor hadn't turned into a supernatural fairy. (For the record, she wore a black-and-white checked suit and pearls.) But the onetime Reagan appointee seemed to suggest that it would take a near-impossible effort to change some of the "deficiencies in the independence of courts" in the United States.
Key among those problems, O'Connor said, is the practice of high-cost, partisan elections of judges, something she has found "scary" because even judges admitted that it compromised their own independence. "If I could wave a magic wand—and I can't, they didn't give me one at the court—I would have it create a merit selection for judges," O'Connor said at a conference at the Library of Congress in Washington, D.C.
Her reasons are, in part, personal. As a member of the Arizona statehouse in the 1970s, O'Connor organized a ballot initiative to do away with the state's elected judiciary, the same year she first ran in an election to be a trial judge. Both she and the initiative won, and in the following years O'Connor said she watched her state's judicial system improve immensely. (She was even a beneficiary under the new appointment system by then Democratic Gov. Bruce Babbitt.)
Judicial elections weren't the only deficiency O'Connor noted. She also highlighted the lack of proper legal representation for many of the poorest defendants.
O'Connor, of course, is no stranger to the topic as author of the landmark 1984 Supreme Court opinion giving defendants a right to appeal their convictions based on faulty lawyering. While she acknowledges that the ruling in Strickland v. Washington (also the topic of the conference) may be among the most influential she ever wrote, the standard the case created hasn't always succeeded, in large part because of the limited funding for the public defenders system.
O'Connor suggested looking for a solution "across the pond" in Britain, where trial lawyers—known there as barristers—serve both as prosecutors and appointed criminal defense lawyers. Housed in one office, she said, they switch sides depending on the case and are paid on a similar scale, unlike many public defenders in the United States. This dual role, O'Connor said, generates "a level of courtesy in courts that you don't see here because they have been on both sides."
That's a lesson, she suggested, American lawyers might learn from. And, she said, "If I had another magic wand I'd find a couple of jurisdictions that would set up an office of public lawyers."
Knowing this was something of a radical idea, O'Connor paused. "I don't know. It's a thought. And fortunately I don't have the responsibility of carrying these thoughts out."