Friday, November 5, 2010

Judicial Elections are Always a Bad Idea.

Back in August, Mr. Torvik predicted that the three Iowa Supreme Court justices facing retention election would win their respective elections. These retention elections were a big deal because of the Iowa Supreme Court's 7-0 decision finding a right to same sex marriage in the Iowa Constitution. As an aside, pages 17 and 18 of that decision give a brief history of civil rights in Iowa that should make every Iowan, or former Iowan, proud.

In any event, out-of-state special interest groups, such as the National Organization for Marriage, combined with failed Iowa gubernatorial candidate Bob Vander Plaats raised about $700,000 to support a campaign to convince Iowans that the three justices standing for retention election this year should lose. It worked. All three justices lost their retention bid. This is remarkable given that no judge had lost a retention bid in the 48 years that Iowa has had that system.

Mr. Torvik thought the campaign to unseat the justices would not work because "the temperamentally conservative Iowa electorate will ultimately reject the campaign and vote to retain the justices." He also wrote that "the nature of this campaign highlights the benefits of a retention-election system over a regular judicial election." Actually, the Iowa campaign highlights why judicial elections are a horrible idea no matter how they are conducted.

The thing I think about when I think of judicial elections is the Scottsboro Boys. I won't try to summarize the entire case as a lot of it isn't relevant to this post. Briefly, however, the Scottsboro Boys are nine male African-American teenagers who were accused of raping two white females. The defendants were tried in Scottsboro, Alabama. Despite the fact that there was very little evidence that any crime had been committed, the boys were tried and found guilty. Indeed, eight of them were sentenced to death. The case went to the United States Supreme Court. In the landmark case of Powell vs Alabama, the Court, in a 7 - 2 ruling, held that the right of the defendants under the Fourteenth Amendment's due process clause to competent legal counsel had been denied by Alabama. New trials were ordered for the defendants.

The retrials were held before a judge named James Horton. Judge Horton shocked everyone by overturning the jury’s guilty verdict in the first of the retrials. The judge made this ruling because he realized that no rapes had taken place and that the defendants were being tried for crimes they did not commit. What was Judge Horton’s reward for ruling on behalf of the defendants? He lost his next election. Why did he lose his election? Because a majority of voters disliked the way he applied the law to protect the defendants. Put another way, the judge lost his election because he followed the law and protected an unpopular group because the law required it. The Iowa Supreme Court justices did the same thing.

To paraphrase what Chief Justice John Roberts once said, a judges job is to ensure that if the Constitution or statute says that some unpopular person or group should win, then the unpopular or group person should win.  His point was that a judge's job is to apply the law fairly and impartially without regard to the parties. That's why justice is portrayed as being blind. A judge that does his job will sometimes rule in favor of parties that many people don't like. However, if the judge likes being a judge, concerns over re-election or retention may discourage judges from ruling in favor of of unpopular parties.  Elections, of whatever sort, are pressure to "rule the right way."  At a minimum, they provide an incentive for judges to do the opposite of what Justice Roberts says they should.

Mr. Vander Plaats called the election results a "victory for freedom, a victory for liberty."  He couldn't have been more wrong.

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