'An attack on a system that works': O’Connor wouldn't support Proposition 137, son says

Sandra Day O'Connor was pragmatic about the fleeting nature of her political sway when she stepped down from the nation's highest court, said her son.

"She said, 'I've probably got about five years of my life left before people aren't going to care what I have to say,'" Scott O'Connor recalled. "So I'm going to use that five years to advocate for two things: merit selection for judges and helping people understand how important it is to have an independent judiciary."

When Sandra Day O'Connor was a legislator in the Arizona Senate in the 1970s , she pushed to create a merit selection process for Superior Court judges, who at the time were directly elected. Arizona voters adopted the system by popular vote in 1974. And his mother believed it had generated one of the best judicial systems in the country over the past several decades, O'Connor said.

She hit the road after her retirement, traveling around the country and pitching state legislatures to adopt similar systems. Her son said she considered those years of advocacy an important part of her legacy.

Sandra Day O'Connor was proud of Arizona's judicial system, and she would not be in support of a current ballot proposition that seeks to change it, her son said.

"It is ironic that in Arizona, where mom led the legislative effort to put merit selection on the ballot in 1974, that the legislature is trying to reduce voter engagement and encroach onto the independence of the judiciary," O'Connor said.

How would Proposition 137 change judicial retention elections?

Currently, trial court judges in Maricopa, Pima, Pinal and Coconino counties, Appeals Court judges and Supreme Court justices are appointed by the governor. All appointed judges sit for retention elections after two years on the bench. After that, Appeals Court judges, including Supreme Court justices, face a retention election every six years and trial court judges face a retention vote every four years.

Proposition 137 was referred to the ballot by the Legislature. If it passes, appointed judges who have not reached the mandatory retirement age of 70 will hold office during good behavior. They could only be kicked out of office through the existing removal and recall procedures set out in the Arizona Constitution or if they did something to trigger a retention election.

Existing constitutional removal and recall procedures require a conviction for a serious crime or a campaign to gather recall petition signatures.

Retention election triggers under Proposition 137 would be the judge's conviction on a felony offense or a crime involving fraud or dishonesty, their initiation of a personal bankruptcy proceeding in which they are a debtor, their being subject to a mortgage foreclosure, or the determination by a majority of the Commission on Judicial Performance Review that they do not meet judicial performance standards.

The commission determined that all of the judges on this year's ballot met standards .

Statewide, there are 69 judges and justices eligible for retention this year, including two state Supreme Court justices.

The Supreme Court justices up for retention will be on all Arizona voters' ballots. Appeals Court and Superior Court judges on the ballot will depend upon the voter's county of residence.

Proposition 137, if passed, would be retroactive and invalidate any results of judicial retention votes in this election. It would also allow each chamber of the Legislature to place a member on the Commission on Judicial Performance Review, which assesses whether judges are meeting standards, and would give legislators the power to demand an investigation of a judge.

Continuing her work: After retiring from the Supreme Court, Sandra Day O'Connor became civics champion

Scott O'Connor: Legislature trying to exert control over judiciary

O'Connor said his mother "would not be pleased" with Proposition 137.

"Prop. 137 goes against several things mom valued most," he said. "It reduces voter engagement by limiting retention votes only to judges rated poorly by the Judicial Performance Review Commission."

O'Connor said his mother would also be against the measure because it inserts politics into the judicial review process.

"This is entirely a creature of the Legislature trying to exert political control over the judicial branch," he said. "It's just bare-knuckle politics, and she would not be in favor of it."

In addition to traveling the U.S., Sandra Day O'Connor also took her judicial reform advocacy abroad, which her son said caused her views to evolve.

"Mom had done a lot of international exchanges with court systems around the globe," O'Connor said. "The big takeaway was how poorly those systems performed where the judiciary wasn't really independent."

"She realized that we are unique in the world with such independence of our judiciary and keeping the politics out of it," he said.

O'Connor said his mother was met with incredulity when she suggested leaders of countries she visited that had been part of the Soviet Union should establish constitutions that provided for independent judiciaries.

"She found that the elite politicians there controlled everything," he said. "And that meant that they controlled the decisions the judges rendered, too."

O'Connor said his mother was against direct elections of judges because she believed it led nations and states toward corruption.

"It wasn't based on their qualifications, or peer review, or investigation of how they function," he said. "It was based on whether they raised enough money to beat their opponent in an election."

On the other hand, Arizona's merit selection process, which uses nonpartisan commissions to evaluate judicial applicants and assemble slates of qualified candidates for the governor to choose from, eliminates elections from the selection of appeals court judges and judges in populous counties while still letting the voters have a say with retention votes.

O'Connor said he did not know his mother's specific thoughts on how frequently retention votes should be held. But he said he does think she agreed that having public participation through retention votes was important.

Sandra Day O'Connor died Dec. 1, 2023, in Phoenix. She was 93. The cause was complications related to advanced dementia and a respiratory illness.

Based on the many conversations he had with her over the years and her record as a legislator and judicial reform advocate, her son is certain she would be a "No" on Proposition 137.

"I could never be as eloquent as her, but she would say that if people really understood how our judiciary could work best, they wouldn't want anything to do with this proposition," O'Connor said. "It's an attack on a system that works."

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