October 2012 Brief: Volume 19, Number 29
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by Donald P. Racheter, Ph.D.
As someone who for many years taught a college class entitled “Judicial Politics,” I would like to try to correct those who have been emoting of late about how the courts and judges are supposedly different from executives and legislators, that they are somehow “non-political.” Any institution composed of humans, including our churches, educational institutions, bowling leagues, newspapers, etc., etc., are political, and the periodic crusades to “take the politics out of politics” are doomed to failure.
Political reform efforts with this goal are usually really efforts to make it easier to divert power and control from ordinary folks to elites such as lawyers, professors, and media professionals. As the authors of a popular American government textbook put it, “Progressives at the turn of the twentieth century advocated electing judges without party labels.” Those “in the know” knew which judicial candidates favored which positions, but less educated and less involved citizens were cast adrift when the helpful labels and symbols like Democrat and Republican, donkey and elephant, were removed from the ballots.
More recently, judicial reformers succeeded in getting Iowa and many other states to start using the “Missouri Plan” for selecting judges:
However, as one of the deans of the judicial politics sub-field within political science put it in a ground-breaking text, “Even the Supreme Court follows the election returns . . . stress is on the similarities between the judicial and other governmental systems, and between judges and other official makers of policy. Judges make political decisions about the allocation of values in society, and the political nature of the process is clear when some judges assert that the Eighth Amendment prohibition on “cruel and unusual punishment” should preclude the death penalty, while other judges agree with the Founding Fathers who wrote and ratified the Amendment that it does not; when some judges assert that killing a viable, late-term, unborn baby through abortion is a crime, while others call it a “woman’s right to choose”; and when some judges assert that “normalizing so-called gay marriage” is a mere interpretation of the civil rights provisions of our state constitution, while others call it “legislating from the bench.”
As I have written elsewhere, “. . . the fact that any Judge can ‘create law’ equal in force to that enacted by a majority vote in both the Iowa Senate and House and signed by the Governor makes it imperative that all concerned carefully screen who is put on the bench and who is retained there.” [Emphasis added.] As noted above, the Missouri Plan which we use here in Iowa is supposed to ensure popular control of judges, and the fact they run for retention unopposed is supposed to allow them to run on their record, and for the people to render a verdict on that record with their ballots! It is rare for a judge running for retention to lose, but when it happened to Chief Judge Bird and two of her liberal colleagues in California because of their repeated opposition to capital punishment, and when it happened to Chief Justice Ternus and two of her colleagues here in Iowa in 2010 over the “gay-marriage” issue, it means the system is working as intended, not broken.
While average citizens can understandably be ignorant of the political nature of judge selection and retention, members of the “mainstream media” who hold advanced university degrees and specialize in reporting on politics and public policy are either being disingenuous or mendacious when they allege that it is “wrong” for citizens to vote against a judge they dislike in a Missouri Plan retention election. Most political scientists (who are by various estimates almost 95% liberal Democrats), and especially those who specialize in the Courts, support my assertions above:
Others who claim that voters should only vote against judges who are senile, abusive, or caught taking bribes are similarly in error, and their motives for such statements in question. Iowa Code Section 602.2102 provides:
As two of my judicial politics colleagues so aptly summarized, “A state judge’s decisions, and not merely his or her personal and professional behavior, may be considered by the public a legitimate basis for voting the jurist out of office.” So those Iowans who disagree with the Varnum vs. Brien decision and choose to “vote No on Wiggins” this fall, if challenged, should point out that they are fulfilling the “good government reform” role designated for them when the Missouri Plan was adopted in our Constitution.
Don Racheter is President of the Public Interest Institute, Mount Pleasant, Iowa. Contact him at Public.Interest.Institute@LimitedGovernment.org.
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