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Recent Elections Stir Old Questions About Judicial Independence

It was late on Election Day 2010 and Vander Plaats, a Sioux City, Iowa, businessman and leader of a campaign to oust three Iowa Supreme Court justices, had just gotten word that he and his team had pulled it off. The voters had rejected the three justices up for a retention vote: David Baker, Michael Streit and Chief Justice Marsha Ternus.

A few months earlier, the Iowa Supreme Court had voted unanimously to overturn a ban on gay marriage, arousing the ire of many conservatives in the state. Iowa has a merit selection system for appointing high court justices, which means an independent commission recommends candidates for a seat on the bench. They are appointed by the governor, but to stay on the bench they must appear before the voters near the end of their terms. For Supreme Court justices, the length of each term is eight years.

For three of the Iowa Supreme Court’s seven judges, their periodic appointment with the voters came last November. Hundreds of thousands of dollars from conservative groups targeting these justices poured in from around the state and around the country. It was the first time in nearly half a century that Iowa voters had rejected a sitting high court justice.

“This night did not have to happen,” Vander Plaats told the cheering crowd. “If our Supreme Court would have stayed in their constitutional boundaries, this night didn’t have to happen. But when they went outside of their constitutional boundaries and made laws from the bench and executed from the bench and amended our constitution from the bench, all our freedoms were up for grabs. … We did not insert politics into the process. They inserted politics into the process when they decided they could make law from the bench.”

Elected officials know they are vulnerable to the whims of irate voters. But in many states, high court judges are elected officials, too. While governors may make the initial appointments in some states, those judges more often than not still have to come before the voters in order to retain their seats on the bench.

The result is that, in many jurisdictions, judges, whose professional obligation is to adhere to the law, must also weigh the political consequences of their decisions. In some instances, a legally correct but unpopular opinion can spell the end of a judge’s career. So when Iowa voters kicked the three justices out of office, it sent some shudders through the legal community and rekindled a long-simmering debate about the best system for picking and retaining judges. It also had many asking what truth and justice actually mean for society’s most vulnerable members.

“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” Erwin Chemerinsky, dean of the University of California, Irvine School of Law and a vaunted constitutional scholar, told The New York Times, shortly after the election. “Something like this really does chill other judges.”

Minority Concerns

Dr. Gary Orfield, a professor of law, political science, education and urban planning and co-director of the Civil Rights Project at the University of California, Los Angeles, has long taken a dim view of the impact of judicial elections on minority groups.

When school busing cases clogged the courts in the 1960s and 70s, he says, “No judge in California Superior Court who wanted to live in the suburbs wanted to take school desegregation cases.”

“It’s not that judges who get lifetime appointments are sympathetic to minorities,” Orfield says. “It’s not a guarantee that they will be fair, but it is a back stop for judges who want to be fair. On balance, having judges elected is bad for minorities.”

To bolster his point, he cites an instance that mirrors the Iowa case.

In 1986, three California Supreme Court justices — including Chief Justice Rose Bird — were removed by voters for their stance on the death penalty. Bird, a liberal lawyer who nine years earlier had been appointed to head the Court, had never voted to uphold a death sentence. She lost her job, in part, because of an aggressive campaign by the state’s Republican leaders. It was the first time incumbent California Supreme Court justices had been rejected at the polls.

As a result, Orfield says, “The Court lost three wonderful judges. It had been a court that had been brave about civil rights issues until that time, particularly on decisions against the death penalty. The California Supreme Court hasn’t been distinguished on civil rights since then. There have been challenges like Proposition 209 [the ban on affirmative action], and the court let them stand. Other courts might have found it in conflict with basic principles. It hasn’t become an actively bad court. It upheld gay marriage. But it hasn’t been helpful to the rights of minorities.”

Perhaps the most famous case of an elected judge running afoul of voters happened about 80 years ago in a rape trial in Alabama. In a series of criminal cases, which later became known as the Scottsboro Boys Trial, nine Black teenage boys were charged with the rape of two White girls on a train. The trials remain notorious even today for their pervasive racism, lack of due process and other irregularities. In one of the cases, Judge James E. Horton offered a display of judicial temperament unseen in racial cases in the Deep South in those days. Not only did he decide to strictly adhere to due process, he also set aside the verdict and death sentence of one of the defendants. Horton was in the fifth year of his second six-year term on the bench. He was ousted by voters the following year and never held public office again.

Popular Opinion

Dr. Kyle Scott, a lecturer in the political science department at the University of Houston, has written extensively about judicial elections. He says elected trial judges can be a good thing for minorities — if the demographics are right. He offers the example of Harris County, Texas, where Houston is located and which has a large and vibrant Hispanic population. In such a setting, he says, the sheer number of Hispanic voters can sway an election in favor of a judge who is sensitive to Hispanic issues.

“The ideal system for minorities would be a system in which at the (appellate and supreme court) level we either have merit selection or an appointment system,” he says. “But at the trial level we would have an elected system because I would have a better chance of having someone representative of my community.”

According to Scott, the NAACP has historically fought for judicial elections, particularly in the South and other regions of the country where courts have historically had a dismal track record when it comes to fairness toward people of color. For the most part, he says, elected judges tend to bend to the ideological winds that blew them into office.

“We find judges going with popular opinion, which is exactly why they were selected in the first place,” Scott says.

Mary Celeste, president of the American Judges Association, acknowledges minority concerns about election-influenced judicial decisions, but she maintains that ethical and legal considerations come first for most judges.

“I met Justice Ternus, who has no regrets about the decision she made in spite of the fact that she was removed from office,” Celeste, a Denver County, Colo., judge says. “I would hope that judges would make decisions based on the facts before them only. I would hope that the people we are selecting to be judges would look beyond favoring themselves. There are some judges who are gone because they wouldn’t favor themselves. I can tell you that I personally am not swayed by what’s popular and not popular. You have to be careful that politics doesn’t influence what you do on the bench. There are things that keep us in check: judicial canons, ethical considerations.”

That said, Celeste, an elected judge, favors doing away with judicial elections and instituting lifetime appointments instead. Currently, only Rhode Island grants its Supreme Court justices lifetime appointments. Justices on the high courts in Massachusetts and New Hampshire are appointed but face mandatory retirement at age 70.

“It insulates judges from politics in all kinds of ways,” she says. “That’s what the Canadians do. You can get them off the bench if they violate judicial ethical considerations.”

UCLA’s Orfield is not sure appointments are the way to go. “We kind of believed that the courts would protect minorities when we had the Warren Court,” he says, referring to the 1950s and 60s U.S. Supreme Court of Chief Justice Earl Warren, which handed down such landmark rulings as Brown v. Board of Education. “But that was the only kind of court like that in American history. In the first years of the Nixon administration we had four appointments [to the Supreme Court]. Within a couple of years they said there was no right to equal education, and there was an immediate end of the expansion of civil rights. During the Reagan-Bush years you had courts chipping away at civil rights gains.”

Decades after his ruling in the Scottsboro Boys Trial made him a model of judicial independence, Horton was asked by an interviewer why he made such a bold decision. He recited a phrase that he said he learned in his home as a boy: “Let justice be done though the heavens may fall.”

While the experts remain divided over the best method for selecting local and state judges, they agree on that much.

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