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November 10, 2010

More ruminations on judicial elections

Last week's general election proved to be a tough day for state courts and state court judges. Despite support from the state legislature and national luminaries such as Sandra Day O'Connor, Nevada voters rejected a ballot initiative to move away from contested judicial elections and toward a merit selection system. (I previously blogged about the dangers of judicial elections and the benefits of the Nevada initiative here.) The proposed merit system would have instituted careful screening of judicial applicants and evaluation of existing judges, both of which were in the public interest. Sadly, the public itself was not interested.

Other states saw issue politics directly impact judicial retention elections. In Iowa, as my colleague Lawrence Friedman noted last week, three supreme court justices failed in their retention bids after voters made the election a referendum on that court's ruling on same-sex marriage. Opponents of the three justices spent approximately $800,000 to secure their removal, nearly all of it coming from sources outside the state. In Florida, two supreme court justices were targeted by tea party groups after they ruled that a proposed initiative exempting Florida from the new national health care legislation did not meet state ballot requirements. While these justices were retained, they received lower retention rates than their counterparts who were not directly targeted.

Not all news was bad, however. In Colorado and Kansas, voters looked past similar issue-oriented campaigns designed to oust members of their respective highest courts, and chose to retain a host of thoughtful and experienced jurists. And in many other states, retention elections proceeded without much commotion.

What to make of these results? We should be cautious about drawing too many comparisons between states, since the dynamics of each state's electorate can be very different. But it is hard not to notice that states with strong, public judicial performance evaluation (JPE) programs tend to be more immune from politicized retention elections than states without such programs. JPE offers voters comprehensive, neutral evaluations about each judge's performance with respect to the process of judging. In other words, JPE encourages voters to retain (or not retain) a judge based on the judge's demonstrated ability to communicate clearly, treat parties fairly, manage his or her docket, and behave appropriately in the courtroom. The substance of individual decisions never comes into play during the evaluations. JPE therefore asks voters to consider the entire context of the judge's role, not just a particular substantive decision.

In Kansas, comprehensive JPE may have blunted the campaign to remove Justice Carol Beier on grounds related to abortion, and in Colorado the same type of extensive JPE program may have caused voters to disregard the "activist judge" rhetoric of that state's unsuccessful "Clear the Bench" campaign. By contrast, the three Iowa justices had no formal, process-based evaluation to help contextualize their overall work on the bench. They now join a growing club of former state supreme court justices who have lost retention elections over the past 25 years -- Rose Bird, Cruz Reynoso and Joseph Grodin in California, Penny White in Tennessee, and David Lanphier in Nebraska -- none of whom had JPE available to them at the time of their failed retention bids.

JPE is not a cure-all. To work, the evaluations must be fair, thoughtful and accessible, and voters must actually read them and incorporate them into their decision-making. But the potential upside of JPE warrants at least a closer look in other states. Perhaps in the next election cycle, we can celebrate informed voting rather than bemoaning the impact of special interest campaigns.

November 3, 2010

Judging Judges in Iowa

On election day 2010, Iowa voters removed three state supreme court judges from the bench because those judges had joined in the court’s unanimous opinion in Varnum v. Brien, the 2009 decision holding unconstitutional, under the state constitution, the state’s prohibition against same-sex marriage. As the New York Times reported, “[a]fter years of grumbling about ‘robed masters,’ conservatives demonstrated their ability to target and remove judges who issue opinions they disagree with.” The Times also reported that similar ouster campaigns had begun on a variety of issues, including a woman’s right to choose, taxes, tort reform, and health care.

When the United States Supreme Court rules in favor of upholding an individual right and against the legislature that enacted the law undermining that right, there is usually some cry of outrage at the temerity of “activist” judges “legislating from the bench.” Given the cases in which the cry of activism is made—Roe v. Wade, of course, but also Bush v. Gore and District of Columbia v. Heller—it seems fair to describe an activist decision as one whose result you just don’t like.

The difference between the U.S. Supreme Court and the Iowa Supreme Court—indeed, most state supreme courts—is that we cannot remove the judges who sit on the former court quite so easily. To remove a federal judge from the bench, the House of Representatives must issue articles of impeachment and the Senate must convict. This has happened only rarely, and Congress has never been able to muster majorities in favor of ousting a federal judge because of disagreement with the substance of a particular decision.

But in Iowa, the situation is different. There, judges must face retention elections, and this year well-funded groups—primarily from outside the state—that disagreed with the result in Varnum urged citizens to express their outrage at the polls. They did so, in the words of one person who organized opposition to retaining these judges, to send a message to the court’s other and future members: be careful about how you decide certain cases if you would like to keep your job.

The framers of the U.S. Constitution likely would have looked askance at the suggestion that the enjoyment of individual rights like due process and equal protection of the law should essentially be subject to a majoritarian veto. A primary reason for a separate and independent judiciary is the protection of individual rights from the whims of the majority. Surely those groups opposed to same-sex marriage would not want their right to marry, or to protest marriage, put to a vote. They might not like the outcome. The time has come, in Iowa and elsewhere, to reconsider the wisdom of any method of selecting judges that undermines their ability to enforce basic constitutional values.

Lawrence Friedman