THE BLOG
09/24/2012 04:02 pm ET Updated Nov 24, 2012

The Judiciary Loses if the Conservatives Win

All of the anti-judiciary slogans emanate from the Republicans: "soft on crime, activist judges, thwarting the will of the majority, legislating from the bench" are all conservative labels starting way back with "Impeach Earl Warren." But for a long while we could take some comfort from the old nursery rhyme: "Sticks and stones can break my bones but names can never hurt me," although I have always believed that this constant, critical barrage eroded the public's respect for the judiciary.

But now the conservative Republicans have gone beyond mere labels and are actually punishing those judges with whom they do not agree and seeking to oust them from office. I can think of nothing more destructive of the independence of the judiciary than retaliating against judges for decisions opposed by a political party or a segment of it. Indeed, the retaliation does not necessarily come from a majority of the electorate, but rather a minority that has the money and organization to remove a judge or defeat one's candidacy for election or re-election.

The New York Times (9/24/12) reports that Iowa, which threw out three Supreme Court justices for overturning the state's prohibition on same-sex marriage, is seeking to do the same for yet another judge, David Wiggins. Judges who allow the burning of the American flag, allow Nazis to march, protect the rights of those charged with crimes and even those found guilty and uphold gay and lesbian rights should be revered for their courage and integrity, not punished. Judicial decisions need not and frequently are not popular. Nor should such popularity be the measure of a good judge.

Of course this erosion of the judiciary is enabled by two factors -- judicial elections and the
Citizens United decision. Judicial elections are unseemly and degrading. Furthermore, money should play no part in judicial selection, but it does. Litigants and lawyers who appear before a judge may contribute to his or her campaign. What more obvious appearance of impropriety could there be! As I have said in an earlier post: "Can you imagine a litigant or a lawyer walking up to the bench in the middle of a trial and handing the judge a check? Is it any less unseemly if the check was delivered a week before?" Furthermore, the public has no idea what makes a good judge and whether the candidate has the necessary qualifications. Certainly focusing on a single decision should not be the measure. About one third of all voters do not cast votes for judicial candidates for that very reason. I do not vote for them because I rarely know anything about them and certainly not enough to cast a vote.

Citizens United has added a new dimension to the corruption of the process. Groups, corporations or even a sole individual can affect and even control the outcome of a judicial election. A candidate can receive such overwhelming support or opposition that the outcome can be virtually assured solely through the amount of money spent through advertising. Some unfair and unfortunate tactics are practiced by both parties, but the Republicans own this one. California justices were ousted for not upholding death penalty convictions. Iowa justices were ousted for not upholding prohibition against gay marriage. What next?

For the traditionalists, the strict constructionists, to advance this theory that the judiciary is somehow accountable to the public and must pass some popularity contest is ludicrous. The strength of the judiciary and its respect depends upon its independence. Its duty is to the Constitution and the laws duly enacted pursuant to it, not the will of some well-organized group with a lot of money.

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