Inquirer Editorial: Targeting judges

November 09, 2010

Anyone who fights to get his day in court had better hope that the outcome is determined by a judge or a jury of fellow citizens who are interpreting the laws - not checking opinion polls. But last week's judicial elections in Iowa provided a troubling victory for just such finger-in-the-wind justice.

With an unprecedented campaign richly funded by national conservative groups, voters tossed three distinguished justices off the Iowa Supreme Court - including the chief justice.

How did the jurists incur such voter ire? They were targeted for removal solely because they joined in the unanimous 2009 ruling by the court that legalized same-sex marriage in Iowa, the first Midwestern state to do so.

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Similar campaigns were mounted by conservatives without such success in several other states where high-court justices were criticized for rulings on abortion, taxes, health care, and legal reform.

The out-of-state forces who drove the Iowa campaign - including the National Organization for Marriage and the American Family Association - accused the three justices of legislating from the bench. One of their shock troops was Rick Santorum, the politically active former Pennsylvania senator who was billed as being on a statewide "Judge Bus Tour" to drum up "no" votes for retaining the justices.

What should have been sleepy, nonpartisan retention elections in which these appointed justices went before voters for a "yes" or "no" decision on another term were turned into highly charged and politicized contests.

Even though the justices' critics may have celebrated the outcome as a victory for democracy, the Iowa majority actually delivered a body blow to a vital tenet of a free society: That's the concept of an independent judiciary, where judges issue rulings based upon their best understanding of the law, not public opinion.

Indeed, Iowa voters chipped away at a cornerstone of justice, which calls for judges to rule without fear or favor. If judges tailor their decisions to the popular will, rather than the law, the courts will become just another political area where the outcome is determined by the highest bidder.

One hopeful result of the Iowa debacle could be that the legal community pushes back hard against politicizing the bench. For their part, voters in several states showed good sense by rejecting other one-issue campaigns targeting judges.

Another positive lesson from the justices' ousters could be that - in a perverse way - the revolt of Iowa voters defuses long-standing criticisms of switching to merit-based judicial appointments in Pennsylvania and other states that still choose judges through partisan elections.

Even with proposals to switch only the state's appellate courts to appointments, labor unions, trial attorneys, pro-lifers, and other merit-selection foes still contend that appointing judges denies voters' rights. Well, Iowa proves them wrong: Voters had their say when the judges came up for a retention election. That's how the system would work here.

Most Iowa voters were harsh and arbitrary in their assessment of the three justices, but no one can say that voters were denied their voice.

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