Ruth Bader Ginsburg says she would forbid state judicial elections

By Robert Barnes
Washington Post Staff Writer
Friday, March 12, 2010

Justice Ruth Bader Ginsburg said Thursday night that she believes states should give up the practice of electing judges.

"If there's a reform I would make, it would be that," Ginsburg said during a question-and-answer session of the National Association of Women Judges, which is meeting in Washington.

Retired justice Sandra Day O'Connor has made the issue her priority since leaving the Supreme Court in 2006, arguing that raising campaign funds and promising specific performance on the bench are antithetical to the practice of judging. She favors merit selection or an appointment system such as the one used to pick federal judges.

Ginsburg was not more specific about how she would replace judicial elections, but she also voiced concerns about fundraising and specific campaign promises. Chief Justice John G. Roberts Jr. was asked a similar question this week and he declined to answer.

Ginsburg noted that she was a dissenter when the court ruled in 2002 that states could not limit the kinds of issues that judicial candidates discussed. She called the majority's ruling -- that limits on political speech violate the Constitution -- the "Gertrude Stein" decision: "An election is an election is an election."

But she said she believed the First Amendment allowed states to "put sensible limits" on what a judicial candidate may say, and she hoped her dissent would someday become a majority view.

Ginsburg made the remarks during a panel discussion with Justice Sonia Sotomayor and Lady Brenda Marjorie Hale, a justice of the Supreme Court of the United Kingdom. It was the first time Ginsburg and Sotomayor had spoken together at a public event outside the court.

Sotomayor said she had been most taken in her seven months at the court by the collegiality of her eight colleagues. "It is the level of respect and affection that surprised me," she said.

"One wouldn't necessarily come to that conclusion" from reading the often-biting opinions and dissents from the ideologically divided court, she said, even though the justices always insist their differences are not personal.

"I was always a little bit dubious. I no longer am," she said.

Ginsburg, who had openly complained about being the only woman on the court after O'Connor left, welcomed Sotomayor's appointment.

"It wasn't right that there should be only one woman on that bench," Ginsburg said. She noted how different Sotomayor's move to the court had been from when she joined O'Connor in 1993. There was never a term, she said, when some lawyer arguing a case did not refer to Ginsburg as O'Connor, Ginsburg said.

"I don't think anyone has called me 'Justice Sotomayor,' " she said to laughter.

There are other changes as well, Ginsburg said, after Yale law professor Judith Resnik asked the justices about advice for young women lawyers and what fields they should pursue.

"Your question implies a choice" that her generation did not have, said Ginsburg, who will turn 77 next week. "There were so many closed doors, and now they are all open."

Ginsburg attended Harvard and received her degree at the top of her class at Columbia Law School, but "not a single law firm in the city of New York" would hire her because she was a mother with a small child, she said. O'Connor's career after Stanford Law School began with an unpaid job at a county attorney's office.

It might have been a blessing. If the corporate world had been open to them, Ginsburg said, she and O'Connor would probably be retired partners from major law firms.

"Look where we ended up," she said.

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