Call of the West: Rein In the Judges
Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as “runaway courts.”
Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.
On Nov. 7, voters will be asked to do something about it.
South Dakota’s ballot contains the most radical provision: It would empower citizens to sue judges over their rulings.
Other proposals would make Colorado the first state to impose term limits on top judges and give Montana residents the right to recall judges over any “dissatisfaction.” In Oregon, an amendment would require Supreme and Appeals court judges to be elected by geographic district, so they reflect the values of conservative rural communities as well as the liberal legal establishment in Portland.
In three other states, ballot measures would also limit judicial authority, though that is not their primary intent. Proposition 90 in California aims to restrict government’s right to condemn private property; it also takes elements of such cases out of judges’ hands and entrusts them to juries instead. Nevada has a similar initiative. And a proposal in North Dakota would severely curtail the discretion judges have in settling custody disputes.
Supporters cast their efforts as populist and democratic, a way to make judges answer more directly to the citizens they serve. “This is a very measured and mild response to the perception that our courts are out of control,” said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado.
Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution.
“Judges are there to protect the minority from the tyranny of the majority. They are not there to do the popular will,” said Doreen Dodson, a St. Louis attorney who chairs the American Bar Assn.'s committee on judicial independence. “They are accountable to the law and the Constitution.”
States have always struggled to balance judicial independence and accountability, said Rorie Spill Solberg, a political scientist at Oregon State University. Lately, she said, that scale has tipped ever more toward accountability -- and toward a notion that judges should respect, even represent, the will of the majority.
All but eight states ban partisan elections for judges in an effort to keep politics -- and corruption -- off the bench. But Solberg and others worry that the latest wave of changes would make judges more vulnerable to pressure from interest groups and even individuals.
“What I see, pretty much across the country, are judges under siege,” said former Colorado Supreme Court Justice Rebecca Love Kourlis.
South Dakota’s Amendment E would have the most sweeping effect; it has drawn opposition from conservatives and liberals -- including, in a rare show of unanimity, every member of the state Legislature.
Under the amendment judges in the state could lose their jobs or assets if citizens disliked how they sentenced a criminal, resolved a business dispute or settled a divorce. “We want to give power back to the people,” said Jake Hanes, a spokesman for the measure.
A special grand jury would evaluate citizen complaints against judges -- and judges would not be presumed innocent. Amendment E explicitly instructs jurors to “liberally” tilt in favor of any citizen with a grievance, and “not to be swayed by artful presentation by the judge.”
This deep suspicion of judges is reflected not only on the fall ballot, but also in the rallying cries of the right, especially Christian conservatives. A summit for “values voters” last spring included a session called “The Judiciary: Overruling God.” Mock ballots, circulated online, urge Christians to vote for the judge they’d most like to impeach.
The American Bar Assn. is so concerned about the trend that it recently produced a DVD called “Countering the Critics,” to be screened at churches, Rotary Clubs and Chambers of Commerce nationwide. To encourage lawyers to speak up in defense of the judiciary, the ABA has drafted sample speeches, op-ed articles and letters to the editor comparing judges to referees, sworn to uphold the rules, however unpopular.
That analogy does not sit well with Andrews, the former state senator backing term limits in Colorado.
In his view, judges too often let their political views color their decisions. Or they arrogantly “ignore or overrule decisions of the people,” he said.
Andrews’ campaign has spent more than $300,000 reminding voters in Colorado of rulings that he considers outrageous, such as when judges struck down a school voucher program, canceled a ballot initiative to limit services for illegal immigrants, and voided the death penalty for a convicted murderer because jurors used the Bible to guide their deliberations.
One of his radio ads begins: “Remember that line, ‘Here comes the judge?’ Amendment 40 has a better idea: There goes the judge.”
Andrews, a Republican, acknowledges that term limits won’t guarantee rulings he approves. But he says it’s better then letting justices sit on the bench for decades, “curdling like old milk.”
Under current law, the governor appoints justices in consultation with a bipartisan commission; they can serve until age 72, facing retention elections just once a decade. Amendment 40 would limit the justices to 10 years, with more frequent retention elections.
Five of seven state Supreme Court justices would be forced off within two years if the measure passes. Andrews relishes that symbolism.
“Simply sending this message of profound discontent with a judiciary that used to be respected is very valuable,” he said.
The amendment has drawn high-powered -- and well-funded -- opposition, with public statements coming from many district attorneys, three former governors and Republican Gov. Bill Owens.
“Reasonable people, present company included, will disagree with rulings from time to time, but that does not mean we dismantle an entire branch of government,” said former Gov. Richard D. Lamm, a Democrat.
Still, analysts say the measure in Colorado -- like those in other states -- has a shot at passing because it taps into such widespread anger at the courts.
“How successful they’ll be is really hard to know,” said Elizabeth Theiss Smith, a political scientist at the University of South Dakota.
“Conservatives in particular have been so upset about judicial rulings, and this is an activist way to deal with activist judges.”