O’Connor to weigh in on judicial process in Iowa

Timothy Kincaid

September 1st, 2010

For 25 years Sandra Day O’Connor’s opinion mattered more than just about anyone in the country. Appointed in 1981 to be the first woman to sit on the Supreme Court, O’Connor was positioned such that half the court was more conservative and half the court was less so. There were very few decisions in which O’Connor was on the losing side and a great many where her judicial thinking determined the course of the nation’s laws.

Upon retiring, O’Connor was asked what she predicted for the court in the 21st Century. The jurist replied that just as matters of race had dominated the court during the 20th Century, the upcoming years would focus on matters of sexual orientation.*

Now, even though she has stepped down from the SCOTUS, O’Connor will be – at least tangentially – addressing same sex marriage.

After the Iowa Supreme Court unanimously found for marriage equality, anti-gay voices have been calling for their heads. Three are up for re-confirmation this year, and there is a campaign to vote them out.

Some argue that the current method of judicial selection – the governor selects from a list of potential jurists who have been vetted by a State Judicial Nominating Committee – leaves judges “unaccountable to the people”. Some, such as conservative Alabama jurist Tom Parker, have gone so far as to argue that Iowa should adopt Alabama’s practice of having their judges run for office and make decisions based on partisan maneuvering and campaign promises rather than on the protections in the state constitution.

That is why it is so important the people insist they be allowed to select those who sit on the bench over them. If judges want to be “super legislators,” then they must stand before their constituents and tell them what they believe about the Constitution as it relates to current public policy debates.

Next week the Iowa State Bar Association will host a panel to discuss judicial appointment, and O’Connor will come to advocate for experience, temperament, and merit as qualifiers rather than populist appeal.

Sandra Day O’Connor will take part in a panel discussion Sept. 8 advocating judge retention based on merits rather than political whim.

O’Connor’s visit next month will be held at Hotel Fort Des Moines. The specifics of the panel discussion, hosted by the Iowa State Bar Association, have not been finalized, said Steve Boeckman, a spokesman for the association, which is one of the hosts of the forum.

“It’s on the merit selection of judges in the state,” Boeckman said. “That’s one of her issues. She’s a proponent of using a merit selection system rather than an election system for judges.”

I don’t know if O’Connor will speak to the wisdom of the court’s decision or even her opinion on the federal constitutionality of anti-gay state amendments. But I find it likely that she will address the campaign to remove the justices from the bench.

And I have to say that I agree with her that the people are best served by having one governmental branch that is not subject to the whim of the latest political trend or the most affluent contributor.

Let’s not forget that “standing before their constituents” may well result in putting Sharron Angle in the US Senate.

* – I’m recalling this from memory, but I cannot, for the life of me, find the interview in which she said this. I would greatly appreciate anyone who has the source.


September 1st, 2010

I have always found Ms. O’Connor inspiring. She was always such sensible voice I thought. I’m very glad she is speaking out. It is difficult to believe that anyone in a civilized nation would argue against an independent and arms-length judiciary, but here we are.

Is America going batty? It is rather frightening to watch. This isn’t the USA I once loved and admired.


September 1st, 2010


Was it “sensible” when she ran out of an Election Eve (2000) party saying something to the effect of, “this can’t be. this can’t be.” (I cannot remember her exact words and don’t feel like Googling.) Her younger days were filled with discriminatory actions as an AZ State legislator.

That she was a swing vote on a very conservative court is not that much to brag about. She voted to kill mentally retarded death-row inmates, voted the wrong way in Bowers, etc.

I have little respect for her aside from the fact that she has focused on this very specific issue (judge selection) since her retirement from SCOTUS and kept her mouth shut on almost all else.


September 1st, 2010

Since we don’t have a viable opposition party to the Republican Party I can’t imagine how things are going to get better anytime soon.

I’m sick of the choice between Republicans and Republicrats.

My kingdom for a proudly, unabashedly Liberal Party.

Lindoro Almaviva

September 1st, 2010

and in completely unrelated news, Tasmania make what? no. 10?


Scott P.

September 1st, 2010

Lindoro, what do you mean by tenth? If you mean country, that’s incorrect because Tasmania is an Australian state. Or do you mean the tenth state of Austrlaia to legalize marriage equality?

Scott P.

September 1st, 2010

*Australia (it’s late here).

Ben in Atlanta

September 2nd, 2010

“My kingdom for a proudly, unabashedly Liberal Party.”

If you agree with the dictionary definition of liberal then it would seem to me that the Green Party comes closest. Read the platform and see what you think. What it says and what is said about it aren’t always the same.


September 2nd, 2010


As Scott pointed out above: Tasmania is not a country. The major aspect you’re missing is that there is no marriage equality in Tasmania. Same-sex couples cannot marry there. The article you posted (and all the others referencing the topic) make it clear that the Tasmanian government is making way to recognize same-sex marriages that occur in other jurisdictions (just like the state New York). Israel is a country that has made this move, yet we don’t consider it a country that has obtained marriage equality since such marriages cannot occur within its borders. This is s a great step for Tasmania, but the LGBT leaders there understand that there is much left to gain.


September 2nd, 2010

Israel is a country that has made this move, yet we don’t consider it a country that has obtained marriage equality since such marriages cannot occur within its borders.

Israel does not have civil marriage per se. In fact, Israel recognizes same sex marriages the exact same way they recognize inter-faith marriages. No one of two different religions (or even sects within those religions) can be officially married within the nation.


September 2nd, 2010

“That is why it is so important the people insist they be allowed to select those who sit on the bench over them. If judges want to be ‘super legislators,’ then they must stand before their constituents and tell them what they believe about the Constitution as it relates to current public policy debates.”

Great idea! That way the judicial branch can protect and represent the interests of the majority, just like it was meant to.

Timothy Kincaid

September 2nd, 2010

Lindoro, Scott, Cole, Tommy, etc.

This is actually not really marriage equality, it’s recognition of marriages / unions in other countries as being the equivalent of a registered partnership (in some cases a downgrade). I’ve been watching the story and I think the bigger story will be how the federal government responds.

Tasmania and the ACT have been trying to enact equality for a while now, but the Feds keep pushing back. There’s a concurrent story about the recent election and the power play by the independents and I’ll post soon tying it all together.

Now back to O’Connor and Iowa.


Ben M

September 2nd, 2010

I’m a republican (with a small R), and fully support the process that andra Day O’Connor proposes. I live in Colorado, which has merit system of appointment, and I feel we have a lot of less corruption than states with elected judges.

Elected judges may be fine for civil and criminal trials (but I doubt it), but if you have elected judges, why bother at all when it comes to questions of what the law means? You might as well leave it up to the elected legislature and/or executive to determine the meaning of the law, after all, who would know best than those that enacted it?

Dan Farrell

September 3rd, 2010

In state after state, the drive to include sexual perversion within marriage has been rejected by the people. Three cheers for democracy!

Ben in Oakland

September 3rd, 2010

“the drive to include sexual perversion within marriage has been rejected by the people.”

Unless of course it is sexual perversion as practiced by heterosexuals.

One cheer for democracy.

Dan Farrell

September 3rd, 2010

It shouldn’t be practiced by heterosexuals either. Adultery and fornication are perversions too.


September 3rd, 2010

For 25 years Sandra Day O’Connor’s opinion mattered more than just about anyone in the country.

Great point.

I’ve enjoyed digesting the Prop 8, DOMA, and DADT legal briefings, or at least as much as my layperson’s brain can absorb, this summer. One of the insights gained has been that judges’ opinions don’t matter, but their judgment does. That includes their ability to evaluate evidence… their capacity to apply the many facets of existing precedent… their skill with pulling all of the disparate facts, arguments, and precedents together to craft a credible, well-integrated ruling.

So, being OCD about editing everything I hear/read, I love the truth embedded in your opening sentence, Timothy, and I also fell immediately into wondering whether judgment or legal judgment would have been more punchy than opinion.

All of this speaks to the overarching point of your post: The work of judges matters, and the nuts-and-bolts outputs of a tiny few matter a lot.

Be well…


September 4th, 2010

Justice O’Connor’s comment about sexual orientation occurred in a C-SPAN series where US political leaders spoke in DC-area schools. Her remarks came shortly before the Court’s last big gay rights decision and turned out to be a tip-off of the result. If the court was going to deny the decision, there’d be nothing to talk about in the future.You can doubtless find her remarks in the newly released C-SPAN archives.

Timothy Kincaid

September 6th, 2010

Thanks, Waldo. If you happen to know/find/come upon a link to the audio or a transcript, I would appreciate it if you post it or forward it to me.


October 24th, 2010


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