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Sunday, December 05, 2010

Courts - "Legal experts say that 2010 may be remembered as the year in which retention elections took on all the bruising characteristics of regular head-to-head judicial elections"

So reports John Gramlich in this story today in the Washington Post. Some quotes:

Legal experts say that 2010 may be remembered as the year in which retention elections took on all the bruising characteristics of regular head-to-head judicial elections. [Illinois Chief Justice Thomas Kilbride's] race, for example, is believed to be the second-most expensive retention election in U.S. history. Negative ads accused him of not only holding anti-business positions, but also siding with sex offenders and murderers.

"From my perspective, this is spillover from the way in which contested judicial elections have been conducted over the last decade," says Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System at the University of Denver. "There is leakage from that particular method of elections over into retention elections."

Even if Illinois provided the most expensive retention election this year, it certainly wasn't the most controversial - or consequential. That occurred in Iowa, where voters took the nationally unprecedented step of ousting three of seven Supreme Court justices after a well-funded opposition group, Iowa for Freedom, attacked the justices over their ruling last year to give constitutional protection to same-sex marriage in the state. * * *

The justices' removal will not affect the gay marriage ruling, but it may change the balance of power on the Iowa Supreme Court. Republican Gov.-elect Terry Branstad wants to appoint the three replacement judges, although technically Gov. Chet Culver, the Democrat whom Branstad beat, could make his own appointments before he leaves office in January.

Observers on both sides of the Iowa election agree that its result will reverberate in courts far beyond Des Moines. "The impact on sitting judges is tremendous," says Alexander Bryner, the former chief justice of the Alaska Supreme Court. "Once we have a result that gets rid of sitting judges because they decided a politically unpopular issue, the message sent to all judges on the bench is, 'Be careful.' "

Whether that is a good thing, of course, is a point of debate. Supporters of an independent judiciary say that judges must not become beholden to majority will, but many others believe that courts - particularly in states that do not hold head-to-head elections - have accumulated more power in recent years than initially intended.

The result in Iowa is "indicative of a movement to hold that third branch more accountable," says Matt Arnold, the founder of Clear the Bench Colorado. Arnold's group sought to remove three Colorado Supreme Court justices this year over a series of tax-related decisions. The campaign wasn't successful, but Arnold says it may be a sign of more fights to come. "A lot of people are waking up to the fact that our courts have been increasingly usurping power that does not rightfully belong to that branch."

Also, an interesting Dec. 3, 2010 story by Grant Schulte of the DesMoines Register:
Iowa Supreme Court Justice David Wiggins maintained Thursday that the state's merit-based judge selection system is the best way to pick fair and qualified jurists, regardless of which governor sits in office or who serves on the panel that picks finalists for the bench.

The justice said he was disappointed with last month's vote to remove three of his colleagues from the bench, but accepted the outcome as part of Iowa's system for picking and retaining judges.

"I am not going to second-guess its results," Wiggins said at a panel forum at the downtown Des Moines Embassy Club. "But I do want to tell this group that it's now time for the court move on."

Wiggins was one of four panelists who spoke at a gathering sponsored by an Iowa chapter of the American Constitution Society about the future of the state court system. * * *

The forum also coincided with news that Wiggins will head the 15-member commission that selects finalists to replace the three ousted justices. [ILB - in Indiana, by law, the CJ is a member, and chair, of the nominating commission.]

"I believe, in my experience with the commissions, that we do the best job forwarding the best candidates to the sitting governor," Wiggins said. "I also believe that, once those names are forwarded to the governor, all the governors I've been involved with - and I go back to when Gov. (Bob) Ray was governor - the governor selects the very best candidate."

The Des Moines Register reported in October that 12 members of the current state nominating commission are registered Democrats, one is a Republican, and one member's party is unknown. The commission's current chairman, Justice Mark Cady, was a registered Republican in 2006 but is no longer affiliated with a party, according to voting records.

Critics and some scholars say that the merit-selection process favors Democrats. Commission members say they are forbidden from factoring politics into their decision.

[Ben Stone, the executive director of the American Civil Liberties Union of Iowa,] said courts that respond to political pressures are less likely to protect the rights of religious, political or ethnic minorities.

"There can be no civil liberties - there can be no individual freedom - in a country that does not have an independent judiciary," Stone said. "And in a state that doesn't have an independent judiciary, all of the rights that are at stake in the state courts are up for grabs."

Posted by Marcia Oddi on December 5, 2010 12:35 PM
Posted to Courts in general