Rejection of Iowa judges over gay marriage raises fears of political influence
Iowa’s rejection of three state supreme court justices who ruled in favor of same-sex marriage underscored the growing electoral vulnerability of state judges as more and more are targeted by special interest groups, legal scholars and jurists said Thursday.
“It just illustrated something that has been troubling many of us for many, many years,” California Chief Justice Ronald M. George said. “The election of judges is not necessarily the best way to select them.”
The three Iowa high court justices were ousted in the kind of retention election California uses for appeals court judges: They face no opposing candidates and list no party affiliation, and voters can select “yes” or “no.” Legal scholars have generally said that system is among the most effective ways of avoiding a politicized judiciary.
But a report by the Brennan Center for Justice this year found a “transformation” in state judicial elections during the last decade throughout the country. Big money and a campaign emphasis on how a judge votes on the bench has become “the new normal,” the report said.
“For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way,” said the report, which examined 10 years of judicial elections. “Many Americans have come to fear that justice is for sale.”
Although Iowa’s vote will have no immediate effect on marriage rights there, it sends a signal to other judges that voters are watching.
“It will pressure judges, or some judges anyway, perhaps even subconsciously, in their decision-making by what would be popular or what might meet the political preferences of the moment,” George said. “And the judge’s loyalty has to be first and foremost to the rule of law, and not to the political or social or economic pressures or personal preferences.”
Several jurists cited recent U.S. Supreme Court decisions that they believe will further politicize the bench. One ruling permitted judges to take political positions during judicial races, and another overturned campaign contribution limits.
Anti-abortion forces targeted George and California Supreme Court Justice Ming W. Chin for removal in 1998 after they voted to overturn a state parental consent law. Both raised money and mounted campaigns to save their seats.
More dramatically, voters ousted the late California Chief Justice Rose Bird and two colleagues in 1986 after a campaign that charged the court was failing to uphold death sentences.
“The Rose Bird situation is now being replicated throughout the United States,” said Justice J. Anthony Kline of the 1st District Court of Appeal in San Francisco. What happened in Iowa is likely to happen in other states, including California, where the Bird election generally has been seen as an aberration, he said.
“The independence of California courts has never been seriously challenged, " Kline said. “But those days may be numbered.”
Most states elect judges, whereas federal judges receive lifetime tenure. Judges for Superior Court in California can be challenged.
A group opposed to gay marriage targeted the Iowa justices, who were on the ballot for their regular retention election, after last year’s unanimous Iowa Supreme Court decision to lift a ban on same-sex marriage. Even though a new governor will now appoint their replacements, the recall is not expected to affect same-sex marriage rights in Iowa.
“It was an attempt to intimidate judges,” said Dean Allan W. Vestal of Drake University Law School in Des Moines. “It had no immediate practical effect.”
The justices who were ejected from the bench blamed “an unprecedented attack by out-of-state special interest groups.” They included the Mississippi-based American Family Assn., the Washington-based Family Research Council and the New Jersey-based National Organization for Marriage.
Liberty Counsel, one of the groups that has been fighting gay marriage, praised the results.
“The justices crossed the line when they played the role of a legislator and abandoned judicial restraint,” said Mathew Staver, founder of the group.
George said pressure has come from both the left and the right in California judicial retention elections.
Rep. Maxine Waters (D- Los Angeles) sent out a slate mailer urging her constituents to vote against Republican appointees to the bench, including Court of Appeal Justice Tani Cantil-Sakauye, who will become chief justice when George retires in January, according to the Metropolitan News-Enterprise, a legal newspaper. A spokesman for Waters could not immediately confirm the report.
In liberal San Francisco, Superior Court jurists went to bat for Republican appointee Judge Richard Ulmer, a registered independent, after he was challenged by a gay Latino Democrat. The San Francisco Democratic County Central Committee, whose slate cards can be influential, endorsed Ulmer’s Democratic challenger.
Kline, a Democratic appointee, helped organize support for Ulmer. Kline said Ulmer had to raise about $300,000 to fend off the challenge on Tuesday.
“That is the problem,” Kline said. “We don’t realize it in California because we don’t have a history of courts being for sale. But look at Texas, Mississippi, New Mexico and an increasing number of states where trial judges can be challenged.”
In Texas, lawyers check the financial disclosure records of judges hearing their cases and bring in other lawyers who contributed heavily to the judges’ campaigns, Kline said.
In Ohio, candidates for the state Supreme Court have run either as the Chamber of Commerce candidate or the labor candidate, George said.
“One year there were competing candidates for the Texas Supreme Court backed by competing oil companies,” he added.
George favors a system in which a Supreme Court judge would be appointed to a single 15-year term without ever appearing on the ballot. Justices now serve 12-year terms, subject to retention by voters.
“That would be your one shot,” he said. “There would be no influence, conscious or unconscious, in terms of having to face a possibly political elective process.”
Jon W. Davidson, legal director of Lambda Legal, said he was distressed by the judges’ defeat in Iowa but added that it would not deter gay rights lawyers from bringing cases in state court.
“In my mind, it is an attack on our country, an attack on our form of government, which has three branches, one of which is supposed to be making decisions without giving in to the majority will,” Davidson said.