Litigation

How Will IA Ouster Affect our Courts?

By Peter Hardin

A  post-Election Day debate is raging over what the ouster of three Iowa Supreme Court justices will mean for our courts.

“It just illustrated something that has been troubling many of us for many, many years,” California Chief Justice Ronald M. George told the Los Angeles Times about the vote to remove the three Iowa justices. In 2009, they were part of a unanimous court opinion that permitted same-sex marriages.

“The election of judges is not necessarily the best way to select them.” Justice George explained his concern about the Iowa retention election verdict:

“It will pressure judges, or some judges anyway, perhaps even subconsciously, in their decision-making by what would be popular or what might meet the political preferences of the moment …. And the judge’s loyalty has to be first and foremost to the rule of law, and not to the political or social or economic pressures or personal preferences.”

But a far different viewpoint came from an editorial in Investor’s Business Daily, which began by saying:

“Three judges in Iowa were disrobed on Tuesday for voting to end the state’s ban on gay marriage. Even those who legislate from the bench would be wise not to ignore we the people.”

The editorial concluded this way:

“In Iowa, at least, voters have looked at the imperial judiciary and recognized these three emperors had no clothes.”

In a Washington Post blog, Ruth Marcus wrote about Iowa in an article that was headlined, “Most disturbing election results of 2010.”

But at the American Thinker website, Phil Boemke reveled that “The people of Iowa scored a major victory…and have sent a clear and powerful message across America.” He added, “Three members of the court learned on election day that judicial activism has consequences.”

Election Law blog author Rick Hasen summed up some of the tensions inherent in the election of judges, when there is an expectation for judicial independence, in an interview on the Brian Lehrer Show aired by WNYC radio.

“We want judges to exercise independent judgment. Yet we want them to be accountable, and so we put them forward in elections. It puts the judges in a difficult position sometimes,” he said.

After the Iowa vote, the question is whether the ability of other election judges to act independently will be chilled, Hasen said. “It’s hard to measure.”

The Los Angeles Times article discussed a recent report co-authored by Justice at Stake and the Brennan Center for Justice about soaring special interest spending in judicial elections over the past decade.

“For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way,” the report said. “Many Americans have come to fear that justice is for sale.”

Full post as published by The Gavel on November 05, 2010 (boomark / email).