By Robert Barnes
Washington Post Staff Writer
Wednesday, October 27, 2010; 5:11 PM
Retired justice Sandra Day O'Connor said Wednesday that she regrets her voice was used in a robo-call urging Nevadans to replace the state's system of elected justices with one that would have them appointed. But she said her involvement in the issue is appropriate.
Some conservative legal activists have criticized O'Connor for her role in the campaign, saying it violates judicial canons prohibiting political activism. Even though O'Connor retired from the court in 2006, she continues to serve by special designation to the nation's appellate courts.
Her voice was used by Nevadans for Qualified Judges, the group backing a ballot question in the state that would change the judicial selection process. The phone calls were noticed mostly because of a mistake - an out-of-state vendor made 50,000 calls at 1 a.m. instead of 1 p.m.
"I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way," O'Connor said in a short statement issued by the public information office at the Supreme Court.
But the nation's first female justice, who has made advocating for appointed judges a personal cause since leaving the high court, added: "I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges."
She did not elaborate, but another canon allows judges to be involved in issues involving the law.
O'Connor, 80, is listed on the Nevada group's Web site as honorary chairwoman. In the call and on some ads produced by the group, O'Connor says, "When you enter a court, the last thing Nevadans want to worry about is whether the judge is more accountable to a campaign contributor or to a special interest group than to the law. "
A narrator then asks listeners to vote for Question 1, which would have the governor appoint judges, who would later stand for retention by voters. The change was passed by the legislature, but must be approved in a constitutional referendum.
Gary Marx, executive director of the conservative legal group Judicial Crisis Network, said O'Connor should resign from judging.
"The questions posed by her flagrant political activity are not merely a matter of proper etiquette - it goes to the core of her constitutional duty to be a neutral arbiter of the law," he said in a statement.
Edward Whelan, president of the Ethics and Public Policy Center and a frequent O'Connor critic in his blog at nationalreview.com, has raised questions about O'Connor's appearances in Nevada and Iowa, where some members of that state's Supreme Court are under fire for their decision authorizing same-sex marriage.
O'Connor has made the issue of an independent judiciary the hallmark of her retirement from the Supreme Court. Through the Sandra Day O'Connor Project on the State of the Judiciary at Georgetown Law Center, she also has been an outspoken critic of the escalating amounts of money being spent in state judicial elections.