Sitting and former judges decried what they called a dramatic shift in the country’s judicial independence on the state level in a panel at the American Constitution Society convention Friday.
Special interest groups have started using retention elections to unseat or influence judges by pouring millions of dollars into an election system where judges rarely see campaigning as necessary or proper, the judges said at the liberal group’s annual convention.
“The system has changed,” said former associate justice for the Indiana Supreme Court Myra C. Selby. “It starts not with judges or lawyers, but with the average Joe and his understanding of what the judiciary is all about.”
And the average Joe, many on the panel feared, is unduly influenced by politicians and ideological groups.
One member of the panel held a first-hand understanding of that influence. Former Iowa Supreme Court Chief Justice Marsha Ternus explained her expulsion from the court after sitting on a three-judge bench that struck down Iowa’s ban on same-sex marriage.
She and her fellow justice became the targets of the conservative group Iowa for Freedom during the 2010 retention election. The group framed its campaign against Ternus as one of the people against an activist judiciary striking down “God’s law,” she said.
Ternus, however, decided not to join the political rancor.
“We decided early on not to form any campaign committees,” she said. “We did not want to contribute to the situation by campaigning like politicians.”
She lost the retention election.
Former Alabama Supreme Court Justice Harold See, Jr. said the problems of political influence would persist no matter what system a state chooses for selecting and retaining judges. As voters see more and more monetary and social issues decided by the courts, they naturally start to focus their efforts on them, he said.
“If that’s where the decisions are being made, where is the money going to go?” See asked. “It’s going to go to make sure that the right people are there.”
See himself comes from a state that selects and retains judges through partisan elections. Having blocked several death-penalty cases in Alabama, he said judges who know how to foster voter understanding of their decisions through campaigns have an advantage.
“Incumbents don’t get removed unless the people identify a problem, and identify it with the incumbent,” he said. “Judges have a practice of not talking to people … but in elected states, we do a lot more of that because we know.”
Former Chief Justice Richard Neely, who served on the West Virginia Supreme Court of Appeals, defended a judiciary system tied to politics, saying that people often react strongly against judicial decisions they see as “a bridge too far.”
“The problem I see is that judges aren’t listening to the arguments of the people with whose values they disagree,” Neely said. “Part of it is the failure of the courts to take into consideration that sometimes they are deciding cases that are highly debatable and they are making law.”
But all panel members agreed that state systems could use reform.
“I think everyone agrees that there’s a problem with the way we select all judges,” said Judge Stephen Reinhardt of the United States Court of Appeals for the 9th Circuit.
