What happens when judges who interpret the laws of the land face criticism from people who feel wronged by those interpretations? Is the effectiveness of judges premised on the notion that they will not face retaliation for judicial acts? Issues of judicial independence like these were what we all explored last Thursday, October 20, 2011, when DePaul University College of Law's Journal of Social Justice cosponsored a symposium on judicial independence with the National Association of Criminal Defense Lawyers. I helped organize the symposium and had the privilege of joining leading academics Amanda Frost (American University Washington College of Law) , Stephanie Lindquist (University of Texas Law School) and Jed Shugerman (Harvard Law School), as well as Bert Brandenburg, the Executive Director of Justice at Stake (an agency that works to keep state and federal courts fair and impartial), Lisa Wayne -- the president of NACDL and two state supreme court justices -- Justice Kilbride of Illinois and former Justice Baker of Iowa -- who were attacked by the right for decisions they made.
I have written before about the unfair attacks on Justice Kilbride and how a group who represent insurance companies but were masquerading as being concerned with criminal justice issues tried to unseat him. I have also written generally about the pernicious effects of judicial elections.
At this conference all of the speakers' insights were brilliant, and there will be a record of them in an upcoming issue of the journal. Each speaker added something important to the discussion about the importance of judicial independence, about how justice cannot be allowed to be bought and sold by business or other interests looking forward to getting rulings in their favor. I will not try to encapsulate the whole symposium here.
I do want to spend some time, though, on the remarkable, humane and brilliant Justice David Baker. You may remember that three Iowa Supreme Court justices were voted out of office based on targeted attacks about their votes on gay marriage. I should remind you that the decision was a narrow one -- did a clerk act unconstitutionally when he refused to issue a marriage license to same sex couples when the Iowa constitution forbids discrimination? The unanimous answer was yes, and the opinion went on to say that this civil ruling in no way affected any religious or other organization which chose to only recognize marriage between a man and a woman. Because three justices (Chief Justice Marsha Ternus and Justices David Baker and Michael Streit) were up for retention after this vote, it was they who were attacked and who were ultimately defeated. Most of the funds for the targeted ouster campaign came from out-of-state conservative groups who raised $650,000 to defeat the three. This story is already known by many.
What was amazing during this conference though was hearing from Justice Baker, hearing his view of what had happened to him and his colleagues, and hearing the intelligence, humility, humanity and intellectual acumen with which he dissected the cause of the vote, and the ominous effects it may have going forward.
Where there might have been outrage, there was measured sorrow and concern. Where there might have been self-pity, there was a call to arms for those concerned about what Mr. Brandenburg aptly termed "the most important political issue almost no one has heard of." Where there might have been some measure of self-promotion, there was only concern about the courts, and fairness and justice.
Justice Baker demonstrated one thing very clearly; he is just the sort of person who should be on the bench.