Katherine A. Helm, Special to Law.com, November 08, 2010
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The nation often believes that the Supreme Court is divided in its voting strictly based on the political parties of the presidents who appointed the justices. The Court's decision earlier this year in Citizens United v. FEC provided a blunt exemplar of the divided ideologies.
Of course, divisions based on ideological orientation have animated judicial rulings since forever. It was perhaps at its worst, though, and the views expressed most strident, as 2000 drew to a close. The Supreme Court had just awarded the presidential election to George W. on party lines, in an episode truly sui generis. The most important decision in American constitutional history was seen as having been decided not by the justices who signed the majority opinion but by the party politics of their appointers. If the majority of voters had their way on Dec. 12, 2000, when Bush II was decided, they might well have tried a rapid-fire "recall" of the majority justices.
Why, then, in the face of such a calamity where the man-on-the-street Democratic voters believed that election was stolen through the medium of Republican-appointed justices, and now, on the still-hot heels of Citizens United, would anyone think the public better served by an appointment system than an electoral system? How could it be worse, one might wonder, irrespective of whether the justices on both sides decided these cases purely on the merits? In fact, could there be better examples of why the voters themselves, not presidents or governors, should make the decision as to who decides? Up goes the straw man. Now let's have some fun deconstructing it.
In the John Grisham novel "The Appeal," a Wall Street predator tries to buy the election for the next Supreme Court justice in the state of Mississippi. The underbelly of the electoral system is exposed as a bad-guy billionaire goes about rigging a judicial election and taking control of a seat on the high court, just in time to overturn a huge plaintiffs verdict in a mass tort lawsuit against his chemical company. The novel's tag line is "Politics has always been a dirty game. Now justice is, too."
It makes for good page-turning. But our judicial system's electoral process is not so dirty, surely. Justice is not for sale like in a Grisham novel. Elected justices are not stooges for corporate interests ... right? Things like that don't really happen in the majority of states (39) that elect their judges. Even after the Citizens United Court threw out a law restricting corporations and unions from funding ads for or against political candidates, corporate money won't sully judicial campaigns ... will it?
John Grisham's personal view that campaign contributions snuff out small-town justice is no secret. Grisham's take on it, per a pre-Citizens United interview on PBS' "Bill Moyers Journal," is that states with elected high court justices are biased in favor of the powerful and are unsympathetic to the rights of victims, consumers and criminal defendants: "Corporate America sells it ... as a way to protect business, economic development, economic growth [saying] -- Look at our state. We frown on lawsuits. We frown on unions. This is a good place to do business."
Post-Citizens United, the mood surrounding the issue of electing high state court justices shifted for many from increasing concern to full-blown dread. Many judicial authorities have stood up and denounced state judicial elections flat out. Retired U.S. Supreme Court Justice Sandra Day O'Connor is against having elected judges and has devoted much personal time to her quest for maintaining judicial independence through the appointment process. In addition, several of the sitting U.S. Supreme Court justices (including the majority opinion author of Citizens United) have voiced equally strong concerns that campaign contributions to judicial races can create the perception, or the reality, that judicial independence is undermined.
If the highest ranks of the judiciary are concerned that money in elections threatens the very institution and the fair administration of justice, people should listen. How can judicial elections be what Jeffrey Toobin called "the national scandal that few people really know about" if such stalwart public figures are speaking out so strongly? Like the bumper sticker goes: If you're not outraged, you're not paying attention.
So how far off are we from a Grisham novel? No doubt, elected judges are potentially susceptible to influence by political or ideological constituencies. But are deep pockets and political connections truly dominating a system corrupted by greed and big business? Well, consider the midterm campaigns to oust Supreme Court justices in various states, most notably Ohio, Illinois, Colorado, Alaska, Michigan and Iowa. Three Iowa Supreme Court justices were removed on Tuesday, through non-competitive retention elections (where a yes/no vote either approves an appointed judge or votes him out). This unprecedented rejection of three Iowa justices was supported by various conservative groups who effectively campaigned for a referendum against last year's Iowa Supreme Court decision that held unconstitutional the state's statutory ban on same-sex marriage.
This is a big deal. Not only do corporations now have the ability to fund campaigns to elect pro-business state Supreme Court justices to generally rule in Corporate America's favor, but special interest groups have shown they can finance ouster campaigns to take out justices (running unopposed, no less) whose opinions are disliked on the social issue-du-jour, like same-sex marriage or the constitutionality of "Obamacare." In this way, popular opinion can be used to dictate the outcomes of individual cases.
Do we label such efforts by the electorate as highly objectionable attempts to corral favorable ideological judgments or do we deem them part of an acceptable practice of voting one's personal philosophies? To even ask the question collapses all distinctions between political and judicial elections. It is disturbing indeed to think that many voters do not even purport to select judges based on their professional competence, i.e., their temperament for the job and their commitment to judicial neutrality and the rule of law. Court rulings are not legislation and justices should not be labeled activists if they do not follow popular opinion on all hot-button issues that come before the court. If citizens do not realize this, or do not care about securing a truly independent judiciary, we are in serious crisis mode.
We don't want our judges acting like some lawyers who hesitate to stand up to their clients for fear of losing the clients. If judges start to treat their profession as a business and hesitate to rule against their electorate for fear of losing their jobs, the administration of justice is compromised. And yet, more and more, elected high court justices are both being viewed and perhaps inevitably viewing themselves as service providers for their electorate. If we endorse this skewed vision, we risk seeing a decline in the exercise of fair and impartial judging due to a commercialization, creeping towards privatization, of the court system.
Given the inevitability of judicial candidates feeling beholden to various constituencies, no matter your politics, it should be clear that our long-term interests are not well served by elected high court justices. Until things change, however, we are going to have to live with the fact that political structures and challenging societal conditions influence the judicial arena. Nothing is foreordained, though, and we need not accept the argument for judicial deference to the principle of majority rule. Elected judges themselves say they don't want judicial positions to become political positions. Those of us in the system need to construct a response to the challenging conditions that face the increasingly commercialized legal world. Justice is not up for a vote. We cannot have judges running on party line platforms concerning active issues because the majority should not rule issue-by-issue or case-by-case. While this is hardly a controversial notion, it is outside the mainstream for some voters, ebbing into what Jon Stewart mockingly derogated as the agenda of those "unelected, lame-stream, activist judges."
This brings us back to our beginning straw man proposal: Don't we have the same problem with high-ranking appointed justices, viz., Bush v. Gore and Citizens United? While it has been argued by presidents (though not always believed by the citizenry) that there exist no litmus tests for Supreme Court appointments, it is expected that presidents will appoint those jurists who fit neatly with their own philosophies and political platforms. As Sen. Lindsey Graham shrewdly stated during Elena Kagan's confirmation hearing, she would not have been his choice, but the person who did choose, President Barack Obama, chose wisely. Elections always have consequences, even in judicial appointment systems. Of course, there have been some upsets, like George H.W. Bush's appointment of Justice David Souter, but this should comfort us with the reminder that the appointment-for-life system is always a bit of a crapshoot that can't ever be rigged.
While the vote splits in Bush v. Gore and Citizens United are troubling to some extent, the presidents who made the appointments of the majority justices in those cases didn't appoint them to garner favorable decisions in those individual cases. The presidents were popularly elected and were thus given a mandate, one can surely agree, to bring the Court around to their way of thinking on critical issues. That's what elective politics is all about. That's not what's at stake in Grisham novels or in those state judicial midterm ouster campaigns. What's at stake in those are fat cats or lobbyists bankrolling "their guys" and their campaigns to get them on the bench to serve their economic interests and loaded social agendas. That is intolerable and a judicial form of pay-for-play at its worst. Whether one actually supports or opposes the agenda or decision in question, we must recognize the ends are not justified when the means bestow an appearance of bias on, and undermine our confidence in, the very judicial system by whose decisions society must abide. Because if we lose that, we're all losers.
Katherine A. Helm, Ph.D., is a former law clerk to a U.S. Court of Appeals judge and a U.S. District Court judge. She is a current Law.com columnist and will soon be returning to private practice in New York City.
Most disturbing results of election 2010
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In one of Tuesday's most disturbing election results, the losing candidates didn't even have opponents.
Three justices of the Iowa Supreme Court lost what is ordinarily a pro forma election to retain their seats. Not coincidentally, these justices were part of last year's unanimous ruling to strike down a state law defining marriage as between a man and a woman. Outside groups opposed to same-sex marriage, including the National Organization for Marriage and the American Family Association, poured hundreds of thousands of dollars into television ads and other efforts to deny them a new term.
"Activist judges on Iowa's Supreme Court have become political, ignoring the will of voters and imposing same-sex marriage on Iowa," said one commercial. "Liberal, out-of-control judges ignoring our traditional values and legislating from the bench.... Send them a message. Vote no on retention of Supreme Court justices."
Well, message sent -- and that is the problem. The Iowa vote is part of a larger phenomenon of the increasing politicization of judicial elections: more money, more attack ads, more intervention by outside groups, from trial lawyers to business interests.
This is an unavoidable result of states' decisions to give voters a say in judicial selection, whether through direct election of judges or retention votes. In 22 states, judges on the highest state court are chosen through elections and then either stand for re-election or face retention votes.
In another 16 states, high court judges are chosen in some other way, but voters weigh in on keeping them. Some of the most prominent champions of judicial independence, including retired Supreme Court Justice Sandra Day O'Connor, have pointed to this approach -- merit selection coupled with retention election -- as a model for insulating the judiciary for undue political influence.
But the 2010 campaign illustrates the downside of judicial accountability and the threat of growing politicization of retention elections. In Illinois, where Supreme Court justices are chosen through elections and then subject to a retention vote, the decision about whether to keep incumbent Chief Justice Thomas Kilbride turned into a multimillion-dollar battle in the wake of Kilbride's vote to overturn a state law limiting damages in medical malpractice suits. Kilbride won.
You might look at the Iowa results as a reasonable illustration of accountability in action. After all, what's the point of building in accountability unless you're willing to let voters hold judges accountable? But there is also a difference between giving voters the opportunity to remove judges who behave in inappropriate or unethical ways and letting retention elections turn into referendums on unpopular rulings. The courts may follow the election returns, but I don't want judges making rulings with an eye on their own electoral fortunes.
I happen to agree with the Iowa court's same-sex marriage decision, but I hope I'd feel the same way if the court had ruled in the opposite direction and gay rights groups fought to remove them. I vehemently disagree with the U.S. Supreme Court's campaign finance ruling in the Citizens United case, but those who suggest the impeachment of Chief Justice John Roberts for that decision are even more off-base than the critics of the Iowa justices. Oregon Democratic Rep. Peter DeFazio told The Huffington Post that he was "investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn't be a judicial activist." DeFazio can't be serious.
There is an inherent tension between independence and accountability. When it comes to the judges -- and when judicial activism is in the eye of the beholder -- the system needs to be rigged, as the founders wisely did, in favor of independence.
November 3, 2010
Ouster of Iowa Judges Sends Signal to Bench
By A. G. SULZBERGER, NY TIMES
LINK
Correction Appended
DES MOINES — An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.
The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions.
Leaders of the recall campaign said the results should be a warning to judges elsewhere.
“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”
But critics of the campaign, including those who see the courts as a protector of minority rights, said the politicization of uncontested judicial elections represented a danger.
“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,” said Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”
Replacements for the three ousted justices will be appointed by the governor from a slate of candidates nominated by the State Judicial Nominating Commission and will have to stand for periodic retention votes, a system known as merit selection.
From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality.
That legacy was cited in liberal corners here last year when the seven-member court voted unanimously to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage.
But the risk of leapfrogging — or ignoring — public opinion on controversial issues was brought into sharp relief Tuesday when voters chose to remove all three justices who were on the ballot seeking new terms.
Conservative groups this year launched similar campaigns in a number of the 16 states that use merit selection, targeting supreme court justices for rulings on abortion, taxes, tort reform and health care. Unlike the three in Iowa, however, those judges — in Alaska, Colorado, Kansas, Illinois and Florida — were all re-elected.
The number of challenges and the success of the effort in Iowa has caused some concern that retention elections designed to be as apolitical as possible are becoming as bitterly contested as other races. This year far more was spent on campaigns in retention elections than was spent in the entire previous decade, according to the Brennan Center for Justice at New York University Law School.
The ouster was reminiscent of a retention election in California in 1986 that led to the removal of three Supreme Court justices who were portrayed as opposing the death penalty.
“Obviously it has an impact on the independence of judges and how they think of their role — I think that’s demonstrable,” said Joseph R. Grodin, a law professor who was one of the three California judges who lost a re-election bid. “But more than that,” he continued, “I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.”
The most sustained effort to oust judges in this election cycle was in Iowa, where out-of-state organizations opposed to gay marriage, including the National Organization for Marriage and the American Family Association, poured money into the removal campaign. Judges face no opponents in retention elections and simply need to win more yes votes than no votes to go on to another eight-year term. In Iowa, the three ousted justices did not raise campaign money, and they only made public appearances defending themselves toward the end of the election.
Each of the three justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — received about 45 percent of the vote, making this the first time members of the state’s high court had been rejected by voters. The 71 lower court judges on the ballot all easily won re-election.
The justices’ removal will have no effect on same-sex marriage, which will remain the law.
The judges declined requests for interviews but released a statement that decried what they called “an unprecedented attack by out-of-state special interest groups.” The statement defended the system for selecting judges but offered what a veiled warning about populist impulses to remake the judiciary: “Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”
The defeat was a bitter disappointment to much of the legal community here, which rallied behind the justices, and it was viewed with particular concern in the gay community, which has found state courts more sympathetic than state legislatures.
“A lot of time we start in the courts because they’re there to protect the minority against the tyranny of the majority,” said Carolyn Jenisen, executive director of One Iowa, an organization supporting gay rights, “Because they’re there to make tough decisions without regard to popular opinion.”
Correction: November 5, 2010
An article on Thursday about a decision by Iowa voters on Tuesday to remove three of the state’s Supreme Court justices referred incorrectly to the composition of the State Judicial Nominating Commission, which will nominate replacements. The group includes seven nonlawyer commissioners appointed by the governor; it is not composed entirely of lawyers.
Conservatives love "results oriented judges" they agree with.
November 6, 2010
Judges Were Independent. Then They Were Defeated.
To the Editor:
We were pleased to see your front-page coverage of Tuesday’s electoral removal of three Iowa Supreme Court justices because they had ruled in 2009 that the State Constitution protected same-sex marriage (“Ouster of Iowa Judges Sends Signal to Bench,” Nov. 4).
When a judge suffers an electoral defeat because he or she exercised judicial independence, we all suffer. Despite that, in a post-election statement, the three justices — Marsha K. Ternus, the chief justice; David L. Baker; and Michael J. Streit — wisely reminded us that we must continue to create and support an independent, merit-selected judiciary.
While it is regrettable that the justices were defeated in a retention election not for judicial incompetence but for ruling in a way they believed was required under the State Constitution, we should not be deterred in our efforts to achieve a truly independent judiciary in New York. This means replacing the current election of judges with the adoption of a commission-based, merit-selected appointment system.
We are confident that this is the best way to select New York’s judiciary. Apparently, three departing judges from Iowa agree with us.
Samuel W. Seymour
President
New York City Bar Association
New York, Nov. 4, 2010
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