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Former Justice O’Connor’s Voice Featured in Nevada Robo-Calls

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by The Federalist Society
Posted October 27, 2010, 4:49 PM

The Las Vegas Review-Journal reports that the voice of Justice Sandra Day O'Connor, who has retired from the Supreme Court bench but continues to sit in for recused judges in lower court cases, was featured on thousands of robo-calls at 1 AM in Nevada advocating for Question 1, which would change the way in which Nevada selects its judges by instituting a gubernatorial appointment system based on the Missouri Plan. Justice O'Connor has since apologized for the calls, which were intended to go out at 1 PM, and says that she did not authorize the use of her voice in these messages.

This development has triggered calls from some commentators that Justice O'Connor should fully resign from the bench by ceasing to sit in for recused judges. Ed Whelan writes on NRO Bench Memos that the Code of Conduct for United States Judges does not allow judges to engage in "political activity" and provides no exceptions allowing judges to campaign on behalf of ballot initiatives.

Gary Marx, also discussing Justice O'Connor's advocacy for the measure on Bench Memos, writes that "O'Connor's robo-call antics are a dramatic departure from her public posturing as a thoughtful neutral arbiter of the law and represent a serious ethical breach." He calls on her to resign and encourages journalists to investigate the calls to determine if she violated any further ethical standards in coordinating with the campaign for Question 1.

On the other hand, on The New York Times' blog The Caucus, Prof. Stephen Gillers of NYU Law argues that "robo-calls solely on the issue of a ballot measure falls within the canon that permits speaking and other activities on the law, the legal system and the administration of justice," and thus that Justice O'Connor did nothing unethical.

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