Sandra Day O’Connor being interviewed on campus on Sept. 16. Photo: Wayne Armstrong
In the seven years since she retired from the U.S. Supreme Court, Justice Sandra Day O’Connor, the first woman to serve on the nation’s highest court, has championed a number of projects related to civics education and a qualified, independent judiciary. With the latter in mind, she serves as honorary chair of the Quality Judges Initiative, launched in 2009 by the Institute for the Advancement of the American Legal System at the University of Denver. The initiative promotes what is known as the O’Connor Judicial Selection Plan. It aims to balance the need for fair and impartial courts with the need for public accountability and transparency in processes for choosing judges. O’Connor sat down with the University of Denver Magazine to discuss everything from her work with the initiative to her service on the Supreme Court.
Question: I’ve been reviewing the institute’s Quality Judges Initiative and some of the work of the judicial selection panel you’re advising, and I was hoping you could give us some sense of what’s driving your work with these initiatives.
Sandra Day O’Connor: The initiatives carried on by this group are all things that, over a good many years, I’ve been interested in and involved in. I served as a state court judge and a federal judge, so I’m interested in the processes by which we get good judges—state and federal. I think it matters very much to the citizens. It’s a subject that is of interest to a great many of our citizens, and it’s worth it for all of us to keep track of what’s happening and how well these things are working. Much of the conversation that we have is to see where are there things that could be improved and how can we help with that and do a better job of selection and so forth.
Q: I gather, from reading some of the recommendations, that you do think we could do a better job of selection.
O’Connor: In many areas, yes.
Q: What would you highlight? What things particularly stand out?
O’Connor: I think every state that selects its judges, by other means than just popular election, should develop a system for identifying and selecting the best qualified people. There are many ways to go about it, and there are many ways in which you can get citizen input. So there’s no one way that stands out and says you have to do this or that. The way to get total citizen input is let the citizens vote on whom to put in as judge, but often voters, who are faced with a whole series of names on a ballot, simply don’t know who to vote for. They don’t follow that subject very much in their daily lives; they don’t turn to the newspaper and say, ‘Oh, the governor appointed a new judge here.’ They don’t follow that because it doesn’t affect them directly. And the question is how, then, in state judicial selection systems, do you develop a system that will identify really well-qualified people for appointment and help see to it that really well-qualified people are, in fact, appointed? It’s not easy. These are the things that this commission tries to look at and sometimes we make suggestions about how a system could be improved. Which is a good thing to do. And yet worry about the other end, too. What do you do if somebody has failures, makes mistakes? How do you remove somebody who has demonstrated low qualifications?
Q: You’ve said in the past that you thought the independent judiciary was under threat. Do you still feel that way, and if so, why?
O’Connor: Yes. There are concerns with how we select our judges. We’re talking about 50 states here, and they have very different systems for selecting judges. Our focus here, I must say, has tended to be more on the West than the East, and we tend to look at what similar states are doing and whether it has produced big problems or whether things are going along all right. These are things that we should look at, as citizens and people interested in getting well-thought-of judges selected at the state level. This is for appointed systems. And as you know, federal judges are appointed. State judges, it depends on the state. In my home state, Arizona, there are appointments of state judges as well. That’s true of a number of Western states.
Q: Recently, in the news, there has been a lot of uproar over a case in Montana, a decision that was greeted with a lot of uproar. My question pertains to the pressure that judges are under from the public to make decisions that the public is in accordance with.
O’Connor: Well, if the public isn’t a position to remove the judge, there is no concern, is there? That would only be true if you were being selected by the public in an election or being subjected to a removal process by the public. And that would depend on the state where you live.
Q: The Denver Post just published an op-ed that called for the appointment, or election, of more women to the bench. The piece suggested that we as citizens need the perspective of women on the bench. I was wondering, since you were the first woman appointed to the Supreme Court, if you felt the presence of women in the judiciary is more about equal opportunity for citizens to succeed and serve or about broadening the perspectives of the judiciary?
O’Connor: It’s about getting a well-qualified judiciary, a judiciary that the American people, who will be served by it, believe is qualified to decide important issues of law. I think, since about half the citizens are female, that many of them think it’s a good idea to have some women judges making some of those decisions. At least that’s how I think about it. And it was a long time coming before women were selected as judges.
Q: And now there are three women on the U.S. Supreme Court.
O’Connor: Yes. It’s amazing. Often, when I’m in Washington, at the time of oral arguments, I’ll go in the courtroom and sit there and think, “look at that bench today” and see three women up there. It’s just a marvelous feeling, because for so long, there were none. And then when I arrived in 1981, there was one for a long time, and I’m very pleased that now there are three. I think there will be more in the future.
Q: When you were sitting there as the only woman on the Supreme Court, did you feel a lot of pressure to perform perfectly?
O’Connor: No, no more or less pressure than under any other circumstance. As a judge, you want to be able to make well-informed, reasonable decisions based on the law and the facts. That was my goal. Male or female, that ought to be the goal.
Q: How should the public think about the role of a Supreme Court justice? It seems common for people to think a justice has done a good job if they’ve affirmed a view that aligns with their politics. Is that really the right way to look at it?
O’Connor: Of course not, as you well know. Your personal opinion, or mine, about whether I like or don’t like a certain conclusion of a case has very little to do with anything. You hope, if you’re one of the people privileged to be making the decision, that you are correct in your understanding of the legal principles that apply and in your understanding of the facts that are in effect in the case. You hope to get both of those things right. Sometimes that’s a challenge.