Go to South Dakota, Madam Justice

Former Supreme Court Justice Sandra Day O'Connor has become a leading voice in the fight to maintain judicial independence in the face of concerted conservative efforts to undermine the authority and power of federal and state judges. And this weekend, that voice sounded in Virginia, where Madam Justice once again warned us that we scorn our judges at our own peril. But the big election-year battle over judges is not back East. It is out West, in South Dakota, where anti-judge zealots are pushing a ballot initiative that would make judges liable for unpopular decisions-- their salary and pensions could be reduced by citizen "grand juries." I just wrote a column about this which you can read here.

O'Connor's remarks this weekend got some play in South Dakota and if opponents of that state's initiative were daring and desparate enough they would figure out a way to get the former Justice to South Dakota between now and election day to speak her mind in person, about how stupid the new law would be. Think of the free local publicity her visit would bring to the anti-attack cause. Think about how many South Dakotans would pay attention to one of the most popular and beloved Supreme Court Justices in modern memory. The South Dakota initiative is a dangerous thing. And it may pass without some outside intervention. It's time to get someone on the phone to O'Connor; time to start checking flights; time to start lining up the hall.

By Andrew Cohen |  October 9, 2006; 8:40 AM ET
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The judiciary is the only branch of the government left to have any faith in - it should be no surprise that the other two branches of government are doing their best to remake the judiciary in their image. Further, the federal judiciary, where judges are vetted and appointed, is much more likely to reach a just result than state judges here in Texas, who are elected party partisans. It is often true that Texas defendants can only expect to have their federal constitutional rights vindicated in a federal court. The state courts are pretty much of a disaster.

The politicization of legal issues - victims' rights, tort reform - have contributed mightily to the problem.

One possible solution being tossed around is appointment of state judges; another is making those races non-partisan. We have ended up with some real suspect characters and marginal legal thinkers on the state's highest courts because they happened to have the letter du jour by their names.

It would also help if our lawmakers understood the law. I saw a Senator on Tim Russert's show this past weekend who said that habeas corpus could be used by terrorists to sue for high-speed internet access. That Senator is in favor of suspending habeas corpus rights, and it is perfectly clear to me that he has no idea whatsoever what he is talking about, as habeas corpus can only be used to challenge the fact or duration of confinement (he is confusing habeas with a 28 USC 1983 action). It is highly likely that this same Senator will be oh-so-perturbed when the US Supreme Court reverses this dangerous congressional decision, as it should.

Posted by: attorneyofrecord | October 10, 2006 06:28 AM

Sandra Day O' Connor... in a red state?!?!?!? Sorry for sounding paranoid... but this is all two sides of the same potateo chip. A case in point comes from Chris Matthews:

FINEMAN: Our numbers are, by our poll measures, historic. Fifty-eight percent saying that they misled us into war. Only 29 percent say we're safer as a result of having gone there. Only 29 percent think we're making progress in Iraq. I mean, these are deadly, literally deadly numbers. And so when the topic --

MATTHEWS: No. You didn't give us the deadliest. Which is, Democrats are more trusted on moral values.

FINEMAN: I thought that was the next question.

MATTHEWS: I mean, that is the stunning -- the Democrats are the big-city party, the tolerance party, in many ways, libertarian on social and moral issues. And now they're perceived to be more priestly, more honorable on moral questions -- I guess that includes social questions and sexual questions -- than the Republicans.

That is the way that Chris Matthews has to think about Liberals: that the "deadliest" thing is that we "are trusted on moral issues". No... that is not the worst thing: the worst thing is that anybody trusts Chris Matthews. Also... since when did it become that tolerance is not a moral issue?!?!?!?

That was via Media Matters for America. It is just so upsetting. I am actually upset... Chris Matthews... he's no Liberal---at all!

Posted by: Oh, to have a Blog | October 10, 2006 07:36 PM

Here's a surprising take AGAINST amendment e by the National Association of Manufacturers:


Posted by: E sucks | October 10, 2006 10:47 PM

Are you aware that Justice O'Connor did speak in South Dakota opposing the South Dakota initiative? See San Francisco Chronicl, November 4, 2006.

Posted by: Joy Kaiser | November 4, 2006 01:42 PM

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