Exit, Stage Left.

Nobody ever went broke underestimating how fickle Americans are about how they want to run their country. So, this one wasn’t hard to predict.

Following the bloodletting of Iowa’s Supreme Court on November 2nd, opponents of judicial elections are beginning to use the event as a platform for suggesting that states should adopt a federal lifetime appointment standard, with no votes of any kind — either candidate elections or retention votes.  Indiana has a system of retention votes, much like the Iowa model, which I described in a previous entry.  Indiana’s judges (only Court of Appeals judges this time) were all retained, but three of Iowa’s Supreme Court justices were handed pink slips by the voters.

In his Time.com Op-Ed piece “Iowa Vote Shows the Injustice of Electing Judges,” lawyer Adam Cohen makes two predictable criticisms of judicial elections: (1)  elections are influenced by big money which compromises judicial integrity; and (2) elections are subject to the whims and passions (read: tyranny) of the majority.  However, neither warrants scrapping the current method of judicial retention votes that have worked for a generation in many states.

Money has always been an integral part of elections.  As the U.S. Supreme Court reminded us in Citizens United, money is often indistinguishable from speech.  A prohibition against spending money to promote speech in favor of a candidate is far too much like a prohibition against speaking directly in favor of a candidate. It just doesn’t pass the First Amendment smell test.  There is always a risk that the integrity of a candidate is influenced by the money of his or her donors.  Yet despite the simple relationship of these two variables — influence and integrity — many progressives seek only to decrease the former and never increase the later. Perhaps instead of finding new ways to eliminate influence we should strive to find candidates with greater integrity.

For that matter, why is the fear of influence through election spending only a fear for the judiciary? Can’t members of the legislative and executive branches suffer the same moral leadership vacuum if influence trumps integrity?  Certainly, they can.  And occasionally do. But for those who elevate the judiciary, the other branches are already lost.  Rather than promote the integrity of law-making and law-enforcing office holders, progressives view the judiciary as the last remaining island of governing purity, free from the taint of capitalism and the crass and distasteful passions of the common folk on the mainland.

"Goodbye minivan-driving, NASCAR-watching, ignoramuses! We have Ivy League degrees and trust funds, so we must know what we're doing!"

Like all progressives, Cohen plants the flag of judicial morality on the high ground of the civil rights movement.  It is the shining example of judges bravely defying the majority will in defense of minority rights.  For the left, every judge untainted by the will of the people is a potential Thurgood Marshall.  (Of course, this means that every Iowa voter that wants to hold judges to some accountability is Bull Connor.)  Absent from these “We Shall Overcome” memoirs are recollections of the pendulum of an independent judiciary swinging the other way.  57 years before Brown v. Board of Education‘s landmark prohibition against “separate but equal” facilities, the same independent, lifetime-appointed Court decided Dred Scott v. Sanford, the case that held that blacks were not “citizens” under the Fourteenth Amendment. While there are manifest benefits to an independent judiciary, independence alone never guarantees that a moral compass will point due north.

The best way to maintain judicial integrity is to promote judges with integrity. Romans 12:21 says “Do not be overcome by evil, but overcome evil with good.”  To be sure, some candidates will be corrupted, whether judicial, legislative, or executive.  But the genesis of such corruption is not the process of their selection to office, the fact that out-of-state money bought too many TV ads, or the notion that they were too responsive to voters.  As night follows day, the corrupted become corrupted because they are corruptible.

"You people let judges decide WHAT?"

As to the wisdom of the framers’ plan for the judiciary, Cohen omits a couple of points in his promotion of lifetime appointments for all judges.  First, the framers understood the role of the federal government as limited.  The idea that no Congress could pass a law without a direct constitutional basis for federal jurisdiction, such as “interstate commerce” was deadly serious to the framers, though it must seem positively quaint to most progressives today.  States could pass laws on any subject, but the U.S. Government could not.  Second, the framers viewed the role of judges as primarily ruling on the issues and parties before them, not on the policy concerns underlying in the law being applied.  In Federalist #78, Alexander Hamilton noted that the judiciary has “neither FORCE nor WILL, but merely judgment,” explicitly recognizing the role of the federal judiciary as a necessarily non-political entity.    The result of these principles is that the framers’ view of federal judges’ lifetime appointments posed far less risk of harm than lifetime appointments for state judges do today.  To the framers, judicial independence was a necessary evil: “necessary” to keep jurists unbiased in the cases before the bench, and “evil” in that their selection is undemocratic.  As a check against this evil, the framers cast the judicial branch as the weakest of the three.

Retention votes have been relatively uneventful.  This year marks the first time any judge has not been retained in Iowa since the current retention vote system was adopted in 1962. Therefore, its history indicates that it is not a power that the voters  are given to using on a whim. A call to completely scrap the system from progressives is . . . well, pretty reactionary.

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Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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