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Former justice discusses merit selection

April 22, 2009

During a visit to South Bend today, former U.S. Supreme Court Justice Sandra Day O'Connor pushed a message that merit selection is the best way to ensure an independent judiciary, though her words come at a time when state lawmakers are close to scrapping that very system in the county she visited.

"I wish it were a happier occasion, because I feel we are celebrating a merit system that may be at its end in St. Joseph County," Justice O'Connor said.

She was referring to House Bill 1491, which proposes ending merit selection for judicial elections of Superior judges in St. Joseph County and is on the verge of passage by lawmakers.

What impact, if any, the former justice's visit could have on the legislation isn't clear but it must happen quickly.

The 25-minute speech entitled "The Importance of Judicial Independence and Our Courts" came at a luncheon sponsored by the St. Joseph County Bar Association. About 550 people attended to hear her speak.

As the first female justice on the nation's highest court, she served from 1981 until her retirement in 2006. Since leaving the Supreme Court, former Justice O'Connor has traveled the country promoting the virtues of an independent judicial branch and speaking in support of merit selection. Her comments in South Bend echoed the views she's expressed at law schools and bar events nationally: that electing judges undermines the independence of the judiciary, especially because of the role of money in the campaigns.

"Judges would be forced to balance the law on one hand and job security on the other hand," Justice O'Connor said. "Ignoring the judicial pressure of elections is like ignoring a crocodile in your bathtub."

She said misunderstanding is driving the modern attacks on merit selection and the legal profession needs to better educate youth on the judiciary's role.

"The only way to stop this onslaught in my opinion, county by county, legislature by legislature, is to build an informed citizenry who understands the role of our judiciary," she said.

Indiana State Bar Association president Bill Jonas was grateful that Justice O'Connor could visit the county, especially at this time.

"The game is not over. We'll play to the final whistle," he said referring to HB 1491.

The former justice's visit comes a week after the Indiana Senate voted 35-15 in favor of HB 1491, authored by Rep. Craig Fry, R-Mishawaka and sponsored by Sen. Ed Charbonneau, R-Valparaiso. The House had overwhelmingly supported the measure in February. State lawmakers were invited, but St. Joseph County Bar Association leaders weren't sure any attended because of the ongoing session.

Amended from its original form, the bill is now being hammered out in conference committee and could be forwarded to the governor for review by the April 29 deadline, if the originating legislative body agrees to the revisions that would create a new three-judge panel for the Indiana Court of Appeals.

Following her speech, Justice O'Connor answered a handful of questions from the audience. One person from Lake County said they were worried about the judicial election legislation and had worked to try to stop the bill at the House, Senate, and conference committee stages. He then asked the former justice what plan B should be?

"I don't know. You'll have to deal with that yourselves..." the former justice replied. "Maybe find some legislators that have a different view."

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