Opinion: Justice Sandra Day O'Connor's Robo Call Apology Isn't Enough

(Oct. 28) -- Mark Twain is supposed to have said that "there is nothing that cannot happen today." The quote seemed appropriate when we learned that Justice Sandra Day O'Connor was the voice behind a campaign robo call that tens of thousands of Nevadans received at 1 a.m. earlier this week. The call was made by a telemarketing firm that has done work for Sen. Harry Reid, was paid for by a group called "Nevadans for Qualified Judges" and urged voters to "Vote yes on Question One."

People started wondering: What is Question One? And are judges really allowed to campaign? It's not often that you hear of a judge, especially a retired Supreme Court justice, engaging in political activity, and even rarer to hear of one lending her voice to those annoying robo calls.

Question One would prevent Nevada voters from having a say in choosing their judges. In Nevada, like most states, the people elect the judges, but if Question One passes the state's judges would be selected through a commission-based method commonly called the "Missouri Plan." Critics of the Missouri Plan argue that it is a secretive and highly politicized method for choosing judges that lets personal-injury lawyers capture the judicial branch by stacking the commissions that nominate judges.

Advocates of the Missouri Plan, like Justice O'Connor, maintain that it promotes public confidence in our courts by allowing an independent commission to nominate judges, keeping judges off of the campaign trail and away from campaign contributions. According to Justice O'Connor's robo call: "When you enter a courtroom, the last thing Nevadans want to worry about is whether a judge is more accountable to a campaign contributor or to a special interest group than to the law."

Legal commentator Ed Whelan, one of the first to weigh in on the issue, condemned the justice's actions as a violation of her ethical obligations, stating, "If O'Connor wants to continue her unseemly politicking on state judicial selection, she should fully and unmistakably retire from the bench. Pronto." Gary Marx, a contributor to National Review Online, called it "a dramatic departure from her public posturing as a thoughtful neutral arbiter of the law" and also urged her to retire.

But, you might think, she already retired, and Justice Samuel Alito replaced her. Well, she retired from the Supreme Court, but she has not retired from being a judge. In fact, the day after the robo call, she sat on the 9th Circuit Court of Appeals and cast the deciding vote to invalidate an Arizona law that requires voters to prove they are citizens.

O'Connor has responded to all this by issuing a statement saying that she didn't authorize the robo calls. But she's delivered the very same campaign message in a video for the same campaign. That campaign also lists her as its honorary chair. She's also told at least one newspaper's editorial board that she endorses Question One.

So she may not be tacky enough to produce a robo call, but she is certainly involving herself in political activities. The video prominently notes her position as a retired justice of the U.S. Supreme Court. Judges should not trade on their names or their positions.

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Not only does this activity seem tacky for a judge, it is pretty clear that it is inconsistent with the relevant ethical rules. According to Canon 5C of the Code of Conduct for U.S. Judges, federal judges must abstain from political activity. This same code makes clear that this rule applies to "retired judges" who must comply with these provisions because she is still engaged in judicial duties. Those ethical rules allow her to do things like appear for a legislative committee and ask for higher judicial salaries or write law review articles. But she cannot participate in politics. Judges can't even participate in extrajudicial activities that detract from the dignity of the judge's office.

Congress created a Judicial Council for each circuit to hear complaints against federal judges. That council should investigate, but the facts suggest that what Justice O'Connor has done is improper. In the meantime, she should either get out of politics or get off the bench and stop deciding cases.

Ronald Rotunda is the Doy and Dee Henley chair and distinguished professor of jurisprudence at Chapman University School of Law. He is also co-author of "Treatise on Legal Ethics," the widely used and quoted text on lawyers' and judges' ethics.