The first stories focused on the amusement of phone calls by retired Justice Sandra Day O'Connor promoting judicial merit selection in Nevada arriving in homes at 1:00 a.m. rather than 1:00 p.m. ("Guess Which Former Justice is Making Robo-Calls?") But then people someone asked, "Wait, a retired U.S. Supreme Court justice is making robo-calls?" Specifically, National Review Online commentator Ed Whelan asked whether the ethical rules governing federal judges allow a federal judge to participate in robocalls in support of a ballot initiative. Canon 5 of the Code of Conduct for United States Judges prohibits them from engaging in political activity, except as permitted by Canon 4, which allows judges to speak to the public and to legislators about legal matters and the administration of justice. Whelan, a former law clerk to Justice Antonin Scalia, believes that personal advocacy of a ballot initiative does not fall within the Canon 4 exemption. But, the code of conduct for federal judges does not apply to Supreme Court justices, sitting or retired. Although justices have said from time to time that they will conform their conduct to the code, technically they are not covered. Jeffrey Shaman, a judicial ethics expert and professor at DePaul University College of Law, told the BLT, "the idea was that Supreme Court justices are so visible that any misconduct could be taken care of through the political process." Shaman and ethics expert Stephen Gillers told BLT that they see nothing ethically wrong with what O'Connor has done. Shaman said that O'Connor's advocacy falls in the category of speech about the administration of justice that the canons permit.
Regardless, Justice O'Connor has issued this statement today:
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. In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.
