Thursday, November 4, 2010

Iowa Justices and an Independent Judiciary

At The Corner, William Duncan sniffs about liberal handwringing over the booting of three Iowa justices who voted to approve gay marriage there:

"Prominent law professors and advocacy groups are apparently concerned that the vote threatens the independence of the judiciary.

The framers of the Iowa constitution certainly didn’t see it that way, since they provided for retention elections. Those raising this concern seem to view the independence judges enjoy as independence from responsibility and from the text and meaning of the constitution they are supposed to be interpreting."

Fair enough. My concern isn't that there's a mechanism for removing justices, but that the process is asymmetric. The New York Times reports:

The most sustained effort to oust judges in this election cycle was in Iowa, where out-of-state organizations opposed to gay marriage, including the National Organization for Marriage and the American Family Association, poured money into the removal campaign. Judges face no opponents in retention elections and simply need to win more yes votes than no votes to go on to another eight-year term. In Iowa, the three ousted justices did not raise campaign money, and they only made public appearances defending themselves toward the end of the election.

You can, I suppose, blame the justices for not campaigning harder to save their jobs. For better or worse, that's not something they've ever had to do before -- and thus were defenseless when the tidal wave from NOM and the AFA hit their state. I'm certain that a fair number of Iowans oppose gay marriage, but I'm also certain that Iowans only really got to hear one side of the story during the election season. That makes it a rather less inspiring show of democracy.

That probably won't happen again. The judges are going to have to campaign for their jobs from now on. And where campaigns exist, so does money to influence the outcome. My concern about judicial independence isn't that the justices were held accountable for their actions, but that the form of accountability will drive them into the arms of campaign donors -- making the whole independence thing a little more tricky.

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