Critics question Justice O'Connor

Pick court cases or politics, they say

Sandra Day O'Connor

WASHINGTON -- Retired Supreme Court Justice Sandra Day O'Connor continues to hear cases in U.S. appeals courts, while also playing a role in public policy issues. Her critics say she should do one or the other, but not both.

Justice O'Connor, 81, was forced to apologize for 50,000 recorded telephone calls made to Nevada voters in which she supported a ballot measure to change the way state judges are selected.

Justice O'Connor said she did not authorize the calls featuring her recorded voice, much less their post-midnight delivery. She also defended her involvement in the campaign that included her appearance in a television commercial.

In September, federal judges in Iowa stayed away from a conference on judicial elections at which she spoke in the midst of another campaign over ballot issues.

Most recently, the retired justice hosted an after-hours reception at the court that was billed as a celebration of Bristol Bay in Alaska. But the featured speakers, other than Justice O'Connor, were opponents of a proposed Alaskan copper and gold mine.

Arthur Hellman, an ethics expert at the University of Pittsburgh law school, said she should consider stopping her participation in court cases if she "wants to engage in this level of political or politically related activity."

Partisan-tinged questioning of conduct by high-court justices has grown. Liberal interest groups have faulted Justices Antonin Scalia and Clarence Thomas for speaking at a private dinner hosted by Charles Koch, one of two energy-company-owning brothers who, liberal groups say, have too much sway on policymakers.

Former Justice O'Connor has traveled the country since her retirement in 2006 to criticize costly election campaigns for state judges, promote enhanced civics education for schoolchildren, and advocate for Alzheimer's research.

Through the end of March, she had written two appellate decisions and joined the majority in a half-dozen others this year. None of the cases involved judicial elections or the fate of the Alaska bay.

The continuing judicial work allows the retired justice, who is paid $213,900, to receive salary increases that are tied to inflation. Judges who stop hearing cases receive a pension equal to their final annual salary as a full-time judge, but are excluded from subsequent cost-of-living increases.

Last week, she was the host of a Supreme Court reception "to celebrate the economic, cultural, and ecological values of Alaska's Bristol Bay Watershed." Opponents of the proposed huge mine near the bay fear it will devastate the world's largest wild sockeye salmon fishery. One speaker was a former Alaska state Senate president, Rick Halford, who told reporters the next day that the proposal was a "very, very dangerous kind of mine."

Mr. Hellman said he finds the court reception particularly troubling because "we're talking about political activity. It's a lobbying effort and she is lending her considerable prestige to that effort."

Another ethics professor, Stephen Gillers of New York University, said that if the speeches were not about advocacy, then the event itself probably does not pose an ethical problem for the former justice. On the other hand, Mr. Gillers said it is possible she would have to step aside from any case involving the groups that sponsored the reception.