Sandra Day O’Connor was pragmatic about the fleeting nature of her political power when she resigned from the nation’s highest court, her son said.
“She said, ‘I’ve probably got about five years of my life before people won’t care about what I have to say,’” Scott O’Connor recalled. ‘So I’m going to use it for five years. to advocate for two things: merit selection for judges and helping people understand how important it is to have an independent judiciary.”
When Sandra Day O’Connor was a lawmaker in the Arizona Senate in the 1970s, she pushed for the creation of a merit selection process for Superior Court judges, who at the time were directly elected. Arizona voters adopted the system by popular vote in 1974. And his mother believed it had produced one of the best justice systems in the country in recent decades, O’Connor said.
She hit the road after her retirement, traveling the country and trying to get state legislatures to adopt similar systems. Her son said she considered those years of advocacy an important part of her legacy.
Sandra Day O’Connor was proud of Arizona’s justice system, and she would not support a current ballot proposal that aims to change it, her son said.
“It is ironic that in Arizona, where my mother led the legislative effort to put merit selection on the ballot in 1974, the legislature is trying to reduce voter involvement and infringe on the independence of the judiciary ,” O’Connor said.
How would Proposition 137 change judicial retention elections?
Currently, the judges of the courts in Maricopa, Pima, Pinal and Coconino counties, the judges of the Court of Appeals and the judges of the Supreme Court are appointed by the governor. All appointed judges are candidates for retention elections again after two years in office. Thereafter, Court of Appeal judges, including Supreme Court judges, face a retention election every six years and trial court judges face a retention election every four years.
Proposition 137 was referred to a vote by the Legislature. If the proposal is adopted, appointed judges who have not yet reached the mandatory retirement age of 70 will remain in office during good behavior. They could only be removed from office through the existing removal and recall procedures outlined in the Arizona Constitution, or if they did something to trigger a retention election.
Existing constitutional removal and recall procedures require a conviction for a serious crime or a campaign to collect signatures for recall petitions.
The trigger for a retention election under Proposition 137 would be the judge’s conviction for a misdemeanor or a misdemeanor involving fraud or dishonesty, the initiation of personal bankruptcy proceedings in which he is a debtor, the fact that he is subject to a mortgage foreclosure, or the determination by a majority judge of the Judicial Performance Review Commission that they do not meet judicial performance standards.
The committee found that all judges met the standards in this year’s voting.
Statewide, 69 judges and justices are eligible for retention this year, including two Supreme Court justices.
The Supreme Court justices to be retained will be on the ballots of all Arizona voters. The judges of the Court of Appeal and the Supreme Court will vote depending on the province where the voter lives.
If passed, Proposition 137 would retroactively void all results of judicial retention votes in this election. It would also allow each chamber of the Legislature to appoint a member to the Judicial Performance Review Commission, which reviews whether judges meet standards, and would give lawmakers the power to investigate a judge to demand.
Continuing her work: After retiring from the Supreme Court, Sandra Day O’Connor became a civilian champion
Scott O’Connor: Legislature tries to exert control over the judiciary
O’Connor said his mother “wouldn’t be happy” with Proposition 137.
“Pres. That goes against several things that mother valued most,” he said. “It reduces voter engagement by limiting vote retention only to judges who have been rated poorly by the Judicial Performance Review Commission.”
O’Connor said his mother would also oppose the measure because it would bring politics into the judicial review process.
“This is entirely a creation of the legislature trying to exert political control over the judiciary,” he said. “It’s just pure politics, and she wouldn’t be in favor of that.”
In addition to her travels in the US, Sandra Day O’Connor also took her advocacy for legal reform abroad, which her son says caused her views to evolve.
“My mother had done a lot of international exchanges with legal systems around the world,” O’Connor said. “The big takeaway was how poorly those systems performed when the judiciary was not truly independent.”
“She realized that we are unique in the world with such independence of our judiciary and exclusion from politics,” he said.
O’Connor said his mother was met with disbelief when she suggested that leaders of countries she visited that had been part of the Soviet Union should draft constitutions that provided for independent judiciaries.
“She discovered that the elite politicians there controlled everything,” he said. “And that meant they also had control over the decisions the judges made.”
O’Connor said his mother opposed direct election of judges because she believed it would lead nations and states toward corruption.
“It wasn’t based on their qualifications, or peer review, or research into how they function,” he said. “It was based on whether they raised enough money to defeat their opponent in an election.”
On the other hand, Arizona’s merit selection process, which uses nonpartisan commissions to review judicial nominees and create a pool of qualified candidates for the governor to choose from, eliminates elections from the court’s selection of judges of appeals and judges in populous counties, while still giving voters the opportunity to have a say in retention votes.
O’Connor said he didn’t know what exactly his mother thought about how often retention votes should be held. But he said he does think she agreed that public participation through vote retention was important.
Sandra Day O’Connor died on December 1, 2023 in Phoenix. She was 93. The cause was complications related to advanced dementia and a respiratory disease.
Based on the many conversations he has had with her over the years and her record as a lawmaker and advocate for judicial reform, her son is confident she would be a “No” to Proposition 137.
“I could never be as eloquent as she was, but she would say that if people really understood how our judiciary could best work, they would want nothing to do with this proposal,” O’Connor said. “It’s an attack on a system that works.”
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This article originally appeared on Arizona Republic: O’Connor wouldn’t support ending judicial retention votes, Son says
