Of butterflies, bats and judicial reform
BY RICHARD GOLDSTEIN
Ninety minutes before she was to appear as the main attraction on a panel of distinguished legal minds hosted by the UF Levin College of Law’s Florida Law Review, retired Supreme Court Justice Sandra Day O’Connor veered away from the meticulously choreographed handshakes and photos ops awaiting her. She strolled next door into the Florida Museum of Natural History for a different sort of attraction.
One expects excitement when a justice of the Supreme Court shows up at a legal function. And even though it was the sixth Supreme Court justice visit to UF Law in the past six years, O’Connor’s appearance fairly tingled with electricity.
But what kind of reception can a retired Supreme Court justice expect inside a butterfly rainforest? It turns out that O’Connor generates excitement among the entomological set, as well. Florida Maguire Center Director Thomas Emmell, one of the world’s foremost butterfly experts, guided O’Connor and her college of law retinue among the rainforest’s fluttering, multihued inhabitants.
The woman widely described as the most powerful in America during her 24-year tenure as Supreme Court Justice left no doubt who was in charge of this particular butterfly tour.
“These students need to hear this,” O’Connor told Emmell, and she turned toward the dark-suited law students chatting among themselves. “Now listen! You’re missing out.”
When she departed the Lepidoptera sanctuary to turn her attention to the judiciary, O’Connor emerged on stage of the Phillips Center for the Performing Arts in front of almost 1,400 people. It distinguished the Sept. 12 inaugural Allen L. Poucher Lecture Series as what UF Law professors emeritus Joseph Little and Fletcher Baldwin, members of the faculty since the 1960s, said was the best-attended law school-sponsored event they could remember.
UF Law Dean Robert Jerry noted later that by kicking off the lecture series with O’Connor, the Poucher Lecture Series instantly earned the credibility to attract high-octane speakers in the future.
O’Connor was joined by panel moderator Martha Barnett (JD 73), a former ABA president and partner in the Tallahassee Office of Holland & Knight, by Florida Supreme Court Justice Peggy Quince and U.S. 11th Circuit Court of Appeals Judge Rosemary Barkett (JD 70).
O’Connor was Senate majority leader of the Arizona Senate before becoming a judge. But her familiarity with elections has not made her sanguine about that method for selection and retention of judges. On stage, she quickly warmed to her subject.
“No other nation in the world elects its judges. That’s a novel proposition,’’ O’Connor told the near-capacity crowd. “When I tell people in other countries about it they’re appropriately shocked.’’
For an encore, O’Connor drew another 860 to the University of Florida Graham Center during a lecture the same evening.
So what is it that makes O’Connor so popular?
Jon Mills, dean emeritus and director of the Levin College of Law’s Center for Governmental Responsibility, is a former speaker of the Florida House who earlier this year chaired an American Bar Association panel discussion with O’Connor. Mills says O’Connor’s position as the first woman on the Supreme Court has thrust her into the public eye. Her key role in court decisions kept her there.
“She is a historic figure in the sense that she is the first woman. I think people know that she was a decisive member of the court in terms of being a very important part of a lot of decisions from individual rights to voting rights, etc., and she is an engaging personality for all of those reasons,” Mills said.
In fact, three years after she retired, a C-SPAN-sponsored survey found 41 percent could name O’Connor as the first woman on the high court. That far exceeded the percentage who could name any of the sitting justices (Justice Clarence Thomas was the most widely recognized at 14 percent).
In her introduction of O’Connor on the Phillips Center stage, Barnett noted that she was so central to the court’s jurisprudence that shorthand-references included her name.
“People often called it the O’Connor Court. Many times, when cases were 4-4 it was Justice O’Connor’s vote that decided it,” Barnett said.
O’Connor was nominated to the court by conservative Republican President Ronald Reagan in 1981. But Mills said her centrism — sometimes she aligned with conservative justices; other times she teamed up with the liberals — makes her a less controversial figure than a reliably liberal or conservative justice. Her centrism “appeals to a broad spectrum of people,” Mills said.
The problem with electing judges, the Poucher lecture panelists agreed, is that it undermines the judiciary as an independent branch of the government while compromising impartiality.
O’Connor noted that most campaign contributors are the lawyers and interest groups who will appear before the judges as advocates or parties to a legal case.
“Huge amounts of money are going to judicial campaigns, which is why we shouldn’t have that system. Campaign contributions have effects on judicial decisions. Even judges say this,” O’Connor said. “If you have a chance in Florida, get rid of popular election.”
O’Connor’s status as judicial rock star does not make her immune to disagreements.
William H. Pryor Jr., a judge on the 11th U.S. Circuit Court of Appeals and former attorney general of Alabama, is one of the dissenters. In a 2007 Virginia Law Review article, Pryor questioned claims by O’Connor and others that the judiciary faces unprecedented assaults on its independence.
On Sept. 30, Pryor spoke at UF Law under the auspices of a Federalist Society speaker series. He told UF LAW magazine after his formal speech that it is not obvious that electing judges is better or worse than the alternative.“I don’t think there’s a perfect way to pick judges. I’ve stood for election as a statewide official and there are problems with that, and I’ve been through an appointment process and can say there are problems with that,” Pryor said. “Judges take it as a given and lawyers take it as a given that a process of judicial selection that involves lawyers more and gives them more power will necessarily produce better results, and the political scientists who’ve got a vast literature about it and have studied it say it’s just not true.”
Underlying the debate in Florida are efforts by Republican House Speaker R. Dean Cannon (JD 92) to reform the state judicial system. His proposal to divide and expand the Florida Supreme Court between civil and criminal divisions died during the spring legislative session.
But constitutional proposals requiring Senate confirmation of justices; easing the way for the Legislature to reverse court rules; and giving the House access to judicial misconduct investigations in advance of impeachment proceedings all passed out of the House and Senate with sufficient majorities to appear on a ballot.
Barkett, the U.S. 11th Circuit appeals court judge and a colleague of Pryor, decried these initiatives.“The efforts the Florida Legislature presently is making to take away power from the judiciary and allocate that power to themselves are really damaging to any concept of the principles established in this country by our constitutional fathers,” Barkett said during the Poucher panel discussion.
Since leaving the Supreme Court, O’Connor has turned most of her energies toward a goal less contentious than judicial reform — improving the nation’s civic knowledge, especially among young people.
“Three out of four people in the U.S., according to recent polls, can name at least one of the three stooges,” O’Connor told the Phillips Center audience. “Two-thirds of Americans cannot even name the three branches of government.”
O’Connor is working to change this state of affairs by sponsoring a website, www.icivics.org, that uses games to teach young people about executive, legal, legislative, local government and budgetary decision making.
But if her trip to the University of Florida was any indication, the 81-year-old jurist is not restricting herself to law, civics education — or even butterflies.
As the sun sank low on the day of O’Connor’s visit, Jerry, the law school dean, found himself on the phone searching out an expert on bats. Next stop for the justice: the University of Florida Bat House.
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