by The same-sex marriage controversy in Iowa has spilled into the judicial retention system, where there is an active campaign to remove the supreme court justices who voted to strike down the state statute limiting marriage to a man and a woman. Let’s assume for the sake of this argument that the court’s ruling was an example of judicial “activism” unmoored from the rule of law. Still, I submit that the broader move toward judicial elections — including the need to raise gobs of cash from interested parties and the reliance on ads deploying scare tactics about unpopular decisions that a judge may or may not reach – is a bigger threat to the rule of law than any particular decision that has been handed down in recent years. Thoughts?
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Rob,
It seems to me that we should distinguish first between judicial election (appointment, etc.) and retention (lifetime, elections every X years, etc).
With that said, I am curious as to why a trend towards judicial elections seems to you to be a threat to the rule of law? Some states have always elected judges, even to their highest courts. Would you say that these states are more likely to be states that have “rule of law” problems then those (such as Indiana) who select their supreme court justices (for instance) based on the recommendation of majority-lawyer committees?
As for retention, although it makes sense for judges to be insulated from popular anger over day to day decisions within the law, why should they be unaccountable in any fashion (including impeachment, for instance) for decisions which overturn popularly-enacted laws?
–Jonathan
It all depends on the tone and impetus of the move toward elections and/or the tone of the retention/impeachment proceedings. I do think that the rhetoric of removing activist judges is problematic because it is so malleable, and easily becomes a contest over which decisions we like and which ones we don’t like. Certainly there should be some degree of political accountability embedded within our legal system, but law is not the same as politics, and even if we think that some judges are making political decisions from the bench, I fear that we exacerbate the problem when we counter by making politics front and center in our view of the judiciary. (I don’t have a well-developed view as to the line between legitimate “accountability” and unhealthy “politics.”)
“law is not the same as politics”
You’re going to have to explain that one.
Angelo Codevilla noted here – http://spectator.org/archives/2010/07/16/americas-ruling-class-and-the/print – that since “Oliver Wendell Holmes argued in 1920 (Missouri v. Holland)… that presidents, Congresses, and judges could not be bound by the U.S. Constitution regarding matters that the people who wrote and ratified it could not have foreseen, it has become conventional wisdom among our ruling class that they may transcend the Constitution while pretending allegiance to it.”
If we have made judges more political, it is because judges themselves are willing to make decisions that are themselves more political or are seen as such, such as in cases where duly enacted laws are clearly constitutional, but are overturned by judges based on the jurisprudential equivalent of “penumbras and emanations.”
Respect for the law is undermined when judges take it upon themselves to engage in these sorts of decisions, especially when judges write long, impenetrable, decisions that are incomprehensible to the general public, which suspects some sort of flimflammery in progress, like the realtor who describes a house as both “in great shape” and “a project house.” Witness the lack of clarity in the opinion of the judge who overturned California’s marriage law in Perry et. al. v. Swarzenegger.
As Paul Robinson and John Darley have argued in various ways, when law departs from shared intuitions of justice in broad fashion, the public loses respect for law in general. When judges are careless or imprudent in overturning statutes with broad support and no clear constitutional conflict, they inject themselves into politics and damage the rule of law in the process.
I did some research on the question of the most trustworthy judicial selection methods for an article called Can Good Judges Be Good Politicians? A Virtue Approach.
My conclusion was that no simple system–whether it is a regular election, retention election, or appointment system–is likely to avoid the concerns Rob is expressing. Each one of them has been corrupted in some time or some place by those who yield the power (whether the electorate or the elites.) Thus, each of them is trustworthy, more or less, based more on the virtues of the folks operating them than on the nature of the system itself, and each creates temptations for bad choices.
Here, I would heed the wisdom about including enough checks to balance overweening use of power, whether it’s careless (as in voters who don’t bother to find out about the judges they vote for) or intentional (as in governors who reward their friends with judgeships.) I am not sure it’s any better that many Minnesotans will vote for any judicial candidate named “Anderson” than that our Governor selects his law partners for judicial office.
But, there are certainly hybrid systems–e.g., the retention election, or electing electors who would appoint judges, or judicial screening and recommendation to voters, etc.
More importantly, though, I argued that we should not measure judicial virtues by typical political standards, nor encourage judges to act like legislators (or executives) by the way in which we choose a selection mechanism.
While I might disagree with some of Jonathan’s characterizations of these decisions, he starts to name some of these virtues (by their negatives)–judges need to be careful, prudent,respectful of their place, respectful of the law, etc.
That said, I am not sure how “politics” and “law” can be so easily separated. A judge who, for example, never departs from precedent has made a “political” decision to conform to previous judicial or legislative decisions–whether his politics relate to the validity of precedent generally or to the substance of this particular precedent.
To start to separate those two “realms” seems to me to smack of an implied illusion that one realm is or should be “pure” and the other is necessarily “dirty,” or the equal illusion that in one realm, the work is primarily mechanical and in the other it is fully discretionary.
As to the latter point, politicians, like judges, work (or should work) from precedent, a sense of their limited jurisdiction (e.g., we can’t punish some immoral behavior because it’s not our place),a set of competencies and principles, and many of the same considerations that judges cite in their opinions.
It seems that the construction of law is the very stuff of politics, as is its implementation and review. The law doesn’t stand apart from the political process, but we do hope to present more continuity in the review end of the cycle. We want to put the breaks on the swings and tie to principle and precedent as we can.
However, ultimately while impractical, there is a political process for ridding ourselves even of our most universally agreed to principles. That’s why we have an amendment process to the constitution. Some future generation is done with freedom of speech? Enough of them agree, and bingo… gone.
Not that such a thing would be reversed in that way, but I do love how modern courts “discover” that things that have always been done are some how “now” unconstitutional. That’s amusing, as are so many of the early decisions that helped form our current legal system which were clearly political in deliberation.
Law is not the same as politics? Law is politics, briefly congealed.
Election Year Medicaid Medicare Inducement issues left open for November not openly discussed. Politics have gone from heated to Man on fire thoughts.Also the Judicial dilemmas, since all are offically allowed to bear arms again, the big city Mayors are concerned about how the poor will be able to rearm themselves and are looking for some type of financial relief from Federal State Medicaid programs to maintain status quo.The higher courts face tough issues this term since making honest fraud legal, there agenda now turns toward making honest kickbacks and honest bribes equally as legal. This topic remains high as a shared issue by the medicaid medicare enrollment providers since they are looking to expand inducements past the complicated pregnancy stage.The DOJ has serious concerns that if legalized marijuana in California for medical reasons could be used as inducement or inticement to help secure new enrollments for the Federal State Medicare Medicaid programs.The State of California is concerned that if the Feds step up their effort in killing off the marijuana crops it could cause higher tax problems that effect Medicaid currently under consideration by the State marijuana tax control board. Limo drivers cancel their planned DC rally and leave for California to protect this years crop. Wow, don’t think I would like to be in Politics for this years elections. Govenor Schwarzenegger indicated that if the Tea Partys membership keeps holding their rallies at our Marijuana burning fields they will have to be taxed for their free use of inhalants, prior to having them bused back to Arizona