Home » Archive by category "Judicial Elections"

My Lunch with the Justice

51917203MW106_Homeland_SecuSandra Day O’Connor’s remarkable career is a testament to many things: dogged persistence, boundless ambition (of the best type), talent, good judgment, a sense of the power of history and, of course, some luck; luck of the being in the right place at the right time variety.

I did not realize until recently, while researching more deeply O’Connor’s history-making 1981 appointment as the first woman nominated to the United States Supreme Court, how determined Ronald Reagan was to put a woman on the Court. Reagan, of course, had made a campaign pledge in 1980 that he wanted to put a “qualified” woman on the Court. When he had the chance just a few months into his term he kept his promise, plucking from relative obscurity the 51-year-old Arizona Court of Appeals Judge and former state senator. So sure was Reagan that he announced O’Connor’s appointment before the FBI had completed its background check leaving then-Attorney General William French Smith to field questions from the White House press corps about whether that was a sound approach.

After a flurry of criticism and concern, most from the far right, O’Connor – imagine this – was confirmed unanimously by the United States Senate just three month after Reagan told her he wanted to put her on the Court.

“Called Judge O’Connor and told her she was my nominee for supreme court,” Reagan wrote in his diary on July 6, 1981. “Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She says abortion is personally repugnant to her. I think she’ll make a good justice.”

[Idaho’s then-Sen. Steve Symms was one who voiced early skepticism about O’Connor, but eventually supported her appointment. Symms’ call to the White House expressing disapproval of O’Connor’s nomination is detailed in Jan Crawford Greenburg’s 2007 book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.]

O’Connor’s place in history is secure and not only as the first woman on the Court, but for her historic sense of moderation and pragmatism. She has become a remarkable role model and one hopes her careful, centrist, blocking and tackling approach to the law will one day soon serve as a model for a Supreme Court that seems determined to embrace the type of judicial activism that O’Connor so smartly rejected.

I would have liked to discuss any or all of this with what one lawyer friend called the “smart and tart” justice when I had the rare opportunity to sit next to her at lunch recently during an Andrus Center conference on women and leadership at Boise State University. But I left politics and the law aside after reading how reluctant she can be to offer up any comment, let alone criticism, of the judging of the current justices. [O’Connor did make news a while back with comments about the controversial Bush v. Gore decision, but even then her comments were very measured essentially saying the Court might have been well-advised to refuse to take the case that settled the 2000 presidential election but did little for the Court’s reputation.]

O’Connor’s latest book Out of Order, a history of sorts of the Supreme Court, has been rapped by some reviewers for not dishing  inside dope about the Court. The typically acerbic New York Times critic Michiko Kakutani, for example, said: “There are no big revelations in this volume about Bush v. Gore or the author’s thoughts on Roe v. Wade; nor are there momentous insights into the dynamics between Justice O’Connor and her colleagues on the bench, or how she felt about being the crucial swing justice, whom the legal writer Jeffrey Rosen once called ‘the most powerful woman in America.'”

While one would undoubtedly enjoy O’Connor’s unvarnished assessments of all those issues and more, I also admire her restraint, a very O’Connor-like characteristic.

Given the chance to talk with the once “most powerful woman in America” I asked her about her love of fly fishing. O’Connor is a dedicated fly caster. In fact, when then-President George W. Bush tried to reach retiring Justice O’Connor to tell her he had selected John Roberts, a judge as conservative and activist as O’Connor is moderate and careful, to replace her on the Court she was fly fishing in northern Idaho. O’Connor told me that she had little time to fish during her more than 25 years on the Court, but she is clearly making up for lost time. If you are a devotee of the fly rod then you know how easy it can be to form an immediate bond with a stranger – even a very famous stranger – when you share a passion for the pursuit of the wily cutthroat or the gorgeous rainbow.

After fishing in Idaho this month O’Connor was headed for southern Montana to float the Yellowstone with a guide she described as “on a first name basis with every trout in Montana.” To go along with the Andrus Center’s leadership award that former Gov. Cecil D. Andrus presented to the Justice in Boise on September 4, O’Connor also received an honorary doctorate from the University of Montana Law School. She indicated that she very much appreciated the awards, but the chance to fish for a few days was also a big attraction.

She said she has fished in east some, even on the Potomac, and even in Patagonia. While in Montana a couple of years ago hearing cases for the Ninth Circuit Court of Appeals, O’Connor was asked about her favorite Montana river. “Oh, this is a setup!” she replied. “Let’s start with the Big Horn.”

I take real comfort in knowing that the first woman on the Supreme Court knows about the Big Horn and the St. Joe. Who knows, perhaps knowing how to properly swing a fly helps inform the swing vote on the Supreme Court. O’Connor’s other great passions are the importance of civic education and the non-partisan selection of judges and again she is right about both.

As with her long ago critics, O’Connor still gets flack from the far right for warning that money, partisan-style judicial elections and good judging just don’t fit together. O’Connor warned in 2009 that too many state judicial elections – and Idaho has had its share – have become “tawdry and embarrassing” producing judges that are merely “politicians in robes.”

As for civic education, O’Connor quotes truly alarming statistics about American’s lack of knowledge about our history and government. “The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” O’Connor said in Boise. Fewer than a third of Americans can name even one current Supreme Court Justice and “less than one-third of eighth-graders can identify the historical purpose of the Declaration of Independence, and it’s right there in the name,” she said.

Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy
Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy

I’ve been fortunate to interview one president – Gerald Ford – and one future president – Jimmy Carter. I had orange juice and coffee in the Roosevelt Room and stood in the Oval Office for a Bill Clinton Saturday radio speech. George W. Bush invited us to the White House for dinner and I was as surprised as he should have been. I’ve worked for one great governor and interviewed a dozen others and had dinner with big time reporters like Tom Wicker, Dave Broder and Tim Egan. Each and every one a very pleasant memory. Lucky me that I can add Justice O’Connor to the list.

The country has produced few more impressive leaders than the woman from Arizona who started out her legal career volunteering her talents because she couldn’t get a law firm to hire her. Her’s is a uniquely American story and one for the history books. Ronald Reagan was right. She did make a good justice.



How Educated are State Legislators?

The Chronicle of Higher Education is out with fascinating new research about the educational attainment of all of the country’s 7,000 state legislators.

Key nuggets in the report: while only about 28% of adult Americans have an undergraduate degree, in no state – New Hampshire is dead last as a percentage – do less than 53% of legislators have a degree. It also doesn’t make much difference to a legislator’s support for higher education where they went to college and most, like most college going Americans, went to a public school.

The Chronicle also ranks the most and least educated state legislatures. If you think your elected officials have to be the best (or the worst), you can now confirm or deny that opinion. By the measure of having earned at least a bachelor’s degree, California has the most educated legislature with nearly 90% of lawmakers have a degree. Oregon checks in at 84.5%, Utah is nearly 80%, Washington at nearly 75%, Idaho just over 73% and Montana, Nevada and Wyoming are all in the mid-60% range. The Chronicle’s profiles of each state are fascinating including detail on the schools where most lawmakers attended and how many stayed home for college and how many went out of state.

The Chronicle says: “Like most American students, the vast majority of state legislators went to public colleges. And most of them stayed close to home. In Louisiana, four out of five legislators never went to college outside the state. Across the nation, many lawmakers attended community colleges. Over all, about one in four don’t have bachelor’s degrees.”

This finding will send a shudder down the back of any president of a public college or university: support for higher education budgets seems to have very little to do with where lawmakers went to school.

More than a third of South Carolina’s state legislators went to the University of South Carolina, but it hasn’t stopped them from cutting the university’s budget by 25% over the last five years.

As Utah’s Commissioner of Higher Education William A. Sederburg told the Chronicle: “My conclusion is that higher education has won the academic argument with policy makers. However, we haven’t been able to convert the academic argument into political action. The big question is, Why not? One Utah legislator answered that he simply doesn’t hear from constituents about supporting higher education, because they’re more concerned with roads, unemployment, and taxes.”

All this insight from the Chronicle just makes the dilemma swamping higher education all the more obvious. Shrinking state budgets have forced colleges to turn to higher tuition and fees in a wicked race to keep current. Meanwhile, financial aid is dwindling, with loans picking up the slack. As one observer noted recently, it is not inconceivable that today’s college students will be paying off loans when their kids are in school.

Obviously – and the Chronicle research supports this – there are a lot of smart lawmakers in state capitols. Yet, all these college grads turned state legislators seem, through their votes at least, to devalue the very higher education that most of them have used to help get ahead in life. I continue to wonder how we build the 21st Century economy we say we want, and create the next big wave of good jobs, without a national commitment to invest more and more wisely in higher education.


Budget Blues

utahLessons from The Beehive State

The Utah state budget is far from flush. The Salt Lake Tribune laments, as legislators do, a $313 million “structural deficit” in Utah. Having a “structural deficit” essentially means the state is spending more than it takes in. Most states have this problem, Idaho included.

As noted here yesterday, the Brookings Institution’s Mountain West Project has identified a variety of reasons for the fundamentally unbalanced nature of western state’s budgets. The reasons range from tax policies that gave away the farm in the form of tax breaks during flush times to antiquated tax structures – like Nevada’s – that overly rely on tourism and home building.

As for Idaho, some have long argued that the state’s tax structure, essentially unchanged since the sales tax was put in place in 1966, no longer reflects an economy built around high tech, services and recreation. If you buy that argument it begins to explain why Idaho, even given the deep cuts in state budgets over the last three years, is likely to continue – post-recession – to have revenue problems. That is a structural deficit.

Still, even with its underlying budget problems, Utah looks pretty good right now having avoided much of the fallout from the burst housing bubble and having in place a sound approach to budgeting and managing state government. And, by comparison to most of her neighbors, Utah is ahead of the game in addressing its structural problems.

Utah lawmakers so far are resisting further dips into the state’s rainy day fund and the state’s overall approach to budget and policy making continues to earn kudos from independent analysts.

In 2008, the Pew Center on the States called Utah “the best managed state” in the nation. Utah got a A- (so did Washington) in the sober, technical Pew study. Idaho, by contrast was back in the pack with Wyoming with a B- grade. Nevada, Montana and Oregon got gentlemanly C+ grades.

One reason Utah scored so high in this analysis was the management systems instituted during the governorship of Jon Huntsman. Huntsman, who recently resigned as U.S. ambassador to China in order to reportedly launch a Republican presidential bid, instituted a number of wonkish, but effective management approaches that impressed the Pew folks.

Here’s some of what was said: “Utah manages all facets of state government well, emphasizing long-term goals and performance outcomes. The executive and legislative branches work together effectively to align expenditures with the strategic direction of the state. Utah has also changed the organizational structure of agencies in order to ensure success, embedding human resources and information technology staff in every state agency to better assist with long term management needs.”

The Pew study concludes with this about Utah: “In sum, routine, evidence- and process-driven review has enabled one Mountain West state to catch an incipient structural deficit early and act intentionally to rectify it before it becomes entrenched.”

Words to budget – and make policy – by.


The State Fiscal Crisis

budgetIt’s Worse Than You Think

California’s new – old – governor, Jerry Brown, delivered his State of State address to the legislature last night. Lots of gloom and doom, not surprisingly, and calls for more drastic spending cuts and the extension of taxes.

California’s budget deficit is $25 billion – with a B. That amounts to 30 percent of the state’s budget and, if that problem and the certain prospect of additional cuts in education and social services weren’t bad enough, the painful reality for California and many other states is that a sizable portion of these huge deficits are literally baked into the fiscal cake of state governments for years to come.

The Brookings Institution’s Mountain West project, in cooperation with the Morrison Institute of Public Policy at Arizona State University, recently analyzed these so called “structural deficits” in four western states, California included.

Researchers concluded that the structural portions of the current state deficits are “the more or less permanent imbalances of revenues and expenditures that can arise from flaws in a state’s fiscal structure, fundamental changes in the regional economy or the state’s demographics, or, especially, imprudent or shortsighted policy choices.”

The study also looked at Arizona which “gave away the store in better times by handing out a series of ill-advised tax cuts (total value, adjusting for inflation and growth: $2.9 billion since 1993);” Nevada where a “narrow, consumption and real estate-oriented revenue system may well now be ill-attuned to a post-Recession “new normal” in which migration, homebuilding, and gaming are permanently depressed;” and Colorado were a “taxpayers bill of rights” has crippled revenue options and the funding for public education.

As for California, the study concluded that the state had “basically enacted too many permanent spending increases (notably on education) during the dot.com boom and more recent good times even as it left in place a series of rigid voter mandates and tax limitations.”

To put the situation even more bluntly, many states have for two decades been spending, tax forgiving and limiting their fiscal options; in essence behaving as mini versions of the federal government. So, while the economy will eventually recover and grow again, some of these state policy choices involving taxes and spending are truly “baked” into the system.

Idaho lawmakers had a rude awakening to this structural reality with the sudden discovery last week that a renewable energy tax credit coupled with routine conformance with the federal tax code is costing the state huge amounts of money. Many folks would rush, as the legislature did a while back, to embrace a tax credit to encourage renewables and the policy obviously worked. What is often missing when these policy choices are adopted is the long view. It is one thing to embrace an immediately attractive tax policy today, it is something else to consider that the diverted cash, now missing from the state budget, will come at the expense of an education or human services budget in the future.

The Brookings report offered four sensible policy suggestions. States should, and I quote from the report:

  • Commit to a balanced approach. Massive budget gaps cannot be responsibly closed by only cutting spending. Budgetary balance and revenue diversification are crucial. In addition to balance and diversification, broad bases and tax system responsiveness should be mantras of fiscal system repair. Tax policies that increase the base and elasticity of state tax systems reduce the need for discretionary and unpopular rate increases.
  • Maintain adequate rainy day funds. Most of the Mountain states exhausted their rainyday funds well before relieving their acute fiscal stress. As the economy gets back on its feet, state governments need to not just replenish, but increase their rainy day funds so that they can better weather protracted economic downturns in the future.
  • Increase local flexibility and control. States have a history of passing measures that constrain local governments’ ability to raise revenues and respond to changing fiscal circumstances. Those local governments need greater control over revenue generation and public service.
  • Improve budget processes and information sharing. Good policy decisions rest on good information and common-sense processes for delivering that information to the people who need it. Decision-makers need to have good data clearly presented about real and projected conditions, the range of policy options, and their consequences.

It must be noted, in contrast to those policy prescriptions, that Idaho lawmakers are still vowing to hold the line on any revenue diversification even as the state’s economy has changed dramatically in the last 30 years and more drastic cuts loom.

The state’s reserve funds are gone and the idea of more local control for local governments is about as popular as a skunk at a garden party. In fact, the Idaho Statesman’s Dan Popkey reported that some lawmakers have hungry eyes focused on that portion of the state sales tax that flows to local government. That’s not more local control, but less.

And, while Idaho has a long history of transparency in its budget process, missing until last week the multi-million dollar impact on state revenues of an established tax credit indicates there is a lot of room for improvement.

The Brookings report is a sobering assessment of the state budget troubles that loom ahead even as the economy starts to recover.

Tomorrow, why Utah is in considerably better shape than much of the rest of the west.

Electing Judges

Sandra_Day_O_ConnorDoes Justice O’Connor Have a Better Way?

News this weekend that an anti-abortion, pro-gun, Christian group in California is targeting judges in the San Diego area comes hard on the heels of another tough contest – including independent expenditures – in Idaho for a seat on the Idaho Supreme Court.

Retired U.S. Supreme Court Justice Sandra Day O’Connor has been speaking out and writing about the inherent problems associated with electing judges; something that most states do.

O’Connor summarized the problem nicely in a recent New York Times Op-Ed: “Each state has its own method of choosing judges, from lifetime appointments to partisan elections. But judges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies.”

Speaking to a bar group in Chicago, O’Connor recalled a contentious 2004 race in Illinois that cost $9 million. “As you might have guessed,” she said, “the winner of that race got his biggest contributions from a company that had an appeal pending before the Illinois Supreme Court. You like that?”

O’Connor advocates a merit selection system and a retention election. “In a merit selection system, a nonpartisan nominating commission interviews and investigates applicants for judicial vacancies, and ultimately recommends a few candidates to the governor. The governor appoints one from the list. Regular ‘retention’ elections are held to allow voters to decide whether to keep the judge in office.”

As a state legislator in Arizona before going to the Supreme Court, in 1974 O’Connor helped create Arizona’s system of merit selection and retention. The respected Brennan Center at the New York University School of Law tracks judicial elections and reform efforts and the Center’s Adam Skaggs said recently that O’Connor has it exactly right – politics and judges don’t mix.

Strictly speaking, the Founders thought the same. Alexander Hamilton wrote in the Federalist Papers, “there is no liberty, if the power of judging be not separate from the legislative and executive powers.”

The election of judges may soon get even more complicated thanks to the recent U.S. Supreme Court corporate contributions case Citizens United that was decided by a divided court on First Amendment grounds. Skaggs predicts, as did Justice John Paul Stevens in his dissent in the Citizens case, that more money will soon flow into judicial elections making it even more difficult for voters – and those with business before the courts – to see how judges are any different than politicians.

As Justice Stevens noted in the Citizens case “concerns about the conduct of judicial elections have reached a fever pitch” and O’Connor predicts,“the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”

A superb Frontline document a while back examined Justice for Sale, It was sobering and cautionary and for anyone who really cares about the independence of the courts viewing it will send a shiver down your spine. Justice O’Connor continues her trailblazing career and her thoughtful cautions are worth a careful listen.