A conference of judicial reformers at Fordham Law School witnessed outbursts of extreme candor Tuesday, not least when U.S. Supreme Court Associate Justice Stephen G. Breyer was handed a floor microphone to comment on a panelist’s observation.

As Breyer began his remark, it quickly became evident that the sound on his mike was off. Although it was an intimate affair in a small amphitheater, participants began fidgeting, craning their necks to hear. The glitch prompted a sharp intercession from the only person in the room who would not allow ceremony to prevent her from letting his honor know the state of things.

“Its not on — nobody can hear you!” said former Associate Justice Sandra Day O’Connor, who was sitting a few chairs away.

O’Connor’s line elicited a collective titter from a group composed of legal luminaries in their own right: law school deans, Fortune 100 general counsel, U.S. Supreme Court litigators, and even the Chief Justice of Ghana.

The symposium’s title — Enhancing Judicial Independence, Accountability, and Selection for the State Court Judiciary: A Program for Reform — is the kind of sobriquet that once caused Harvard Law School Dean Roscoe Pound (or was it Chief Justice Arthur Vanderbilt?) to quip that judicial reform “is not for the short-winded.”

But the daylong affair, the brainchild of Schoeman Updike & Kaufman partner Norman L. Greene, repeatedly offered pithy insights and declarations of commitment that bordered on the passionate. This was an assembly of like-minded reformers dedicated to the twin propositions that America’s judiciary is dangerously under siege — and that pulling up the drawbridge is no way to save the castle.

INDEPENDENCE VS. ACCOUNTABILITY: A FALSE CHOICE

O’Connor was not absolving the bench of the need for accountability, noting that the spread and debasement of judicial elections are at least as responsible for systemic woes as any particular ideology. “We’ve put cash in the courtroom, and it’s just wrong,” she said. “No other nation in the world has it.”

The retired justice led off the proceedings by reminiscing about her early days in Arizona, when she saw placards calling for the impeachment of then-Chief Justice Earl Warren. But recent years, she lamented, have seen far more virulent attacks — judges threatened with violence during the Terry Schiavo life support case in Florida, members of Congress advocating legislated circumscription of judicial authorities, a highly political proposal to slash the terms of sitting judges in Colorado, and, most notoriously, the recently failed “Jail4Judges” campaign in South Dakota to have citizen grand juries sit in judgment on members of the bench and actually imprison some based on individual rulings.

One particularly tawdry manifestation of the downward electoral spiral that O’Connor recounted involved her recent conversation with “top-notch trial lawyers in Texas.” The group told her that their first action upon hearing of their assignment to a judge was to research their opposing counsels’ campaign donations to the jurist — so they could match them.

“It’s like nothing I’ve seen in my very long life,” she said. “Judicial independence is a bedrock principle, and we’re losing it.”

Breyer similarly bemoaned the decline of respect for judges within the commonweal, though he stressed that non-elective systems could be just as corrupted. “That might be worse because everyone appoints his cousin.”

He recounted a trip to Russia soon after the ascent of Boris Yeltsin where he heard about “telephone justice” — the practice of officeholders with judicial appointment powers “calling judges and telling them how to vote.” But America has at least the “appearance” of the same problem, he added, “because half the country thinks judges decide cases any way they want.”

Both justices agreed that elevating the broader “culture” surrounding the judiciary was as important as any single change to judicial selection systems, though O’Connor could not help but return to the notion that plebiscites are the root of much evil. Despite the existence of accountability systems in all states, she said, the ones with elections “are where the slippage is.”

BOTH SIDES RIGHT

Widener School of Law Professor Michael Dimino argued that one problem lies in the tendency for defenders of independence and advocates of accountability to “talk past each other.” Those wary of too much oversight justifiably fear “mob law,” he said, while would-be monitors rightly worry that jurists can establish fiefdoms answerable to nothing but whim, ideology, or influence: “They’re both right.”

Dimino called for a compromise — the imposition of “lengthy, nonrenewable term limits” for state judges, which he said would balance their need for “decisional independence” against fears that they’d devolve into the equivalent of “pollsters.” And in an interesting inversion of New York’s system, Dimino said that it was precisely the lower bench that should be appointed, while the Court of Appeals should be elected, because the higher bench often sets the kinds of interpretive precedents that are more akin to those of a governing body.

All very well and good, responded James Sample, Counsel to the Brennan Center for Justice at NYU School of Law, but we live in the here and now. One of the architects behind the lawsuit that last year failed to persuade the high court (including Justice Breyer!) that New York’s system for judge picking is unconstitutional, Sample noted that no state had surrendered what it perceived to be the judicial electoral franchise in 20 years.

So he called for incremental reforms that would improve both electoral regimes and appointive systems.

Sample pitched public finance for campaigns, arguing that First Amendment concerns should be balanced against due process considerations for litigants who might well fear that they were being denied access to a fair and impartial venue. He also called for much stricter rules promoting recusals, to counter a spreading perception of “pay-to-play” justice.

“The rule of law needs a tourniquet,” he concluded, “and it needs it now.”