11/10/2010 04:00 pm ET | Updated May 25, 2011

The Deterrent Effect

Having an elected judiciary simply doesn't work. As I have written before we need merit selection. An elected judiciary isn't free to make the tough choices, some of which may be unpopular, when they may be subject to a smear campaign later.

In last Tuesday's election, Chief Justice Kilbride of Illinois managed to hold on to his seat. (In Illinois, judges run for retention, in which is the voter is asked for a simple "yes, he or she should be retained," or "no, he or she shouldn't"). Kilbride will remain a justice despite the outrageous and inaccurate attacks on him due to a $650,000 campaign to oust him that was mounted largely by business and insurance interests opposed to his vote to overturn legislative caps on malpractice awards.

To hold on, though, Justice Kilbride raised a huge amount of money -- about $2.5 million -- which came from plaintiffs' lawyers, labor unions and other interests funneling money through the Illinois Democratic Party. This is bad enough - litigants and potential litigants pouring money into a retention election to get (or keep) "their guy" in what should be an impartial job; judging.

But worse, three justices of the Iowa Supreme Court were in fact voted out -- even though they too were only running for retention, because they had joined in last year's unanimous ruling by seven justices to permit same-sex marriage in that state. Unlike Justice Kilbride, the three Iowa justices sought to remain above the fray -- more judicial, perhaps -- and did not raise money. They made very few public appearances, and they hardly ran any ads. A group which supported them, Fair Courts for Us, reported spending about $400,000 to help the three justices retain their seats, but they were outspent by the right -- the National Organization for Marriage, the American Family Association and other groups that spent at least $1 million urging voters to oust them. The 2009 ruling regarding gay marriage will stand. But the judges' defeat is sure to make other elected judges afraid - and that is the intent of these organizations. What NOM and AFA are after is a judiciary afraid to judge and afraid of the public backlash, one that will pander to the whims of the electorate, or more accurately, the electorate as manipulated by special interests.

Being a judge is hard enough. Resolving questions of law and credibility, competing public and private interests, requires intellectual acuity and legal knowledge. Being a judge also requires the courage to do what is right, whether or not it is popular. We have three branches of government for a reason, and the judiciary should be selected on the basis of merit, not electability, and not because a group -- whoever they may support -- is willing to spend money to put a puppet with robes on the bench.