November 5, 2010
As mentioned, while California voters were confirming or retaining three state Supreme Court justices by wide margins, the Iowa electorate removed three justices from its Supreme Court as revenge for the justices’ votes in a unanimous opinion overturning a same-sex marriage ban.
The Iowa result has been condemned both in the state — a Des Moines Register editorial called it “a heartbreaking defeat for three fine judges sideswiped by a campaign of angry retribution for a single unpopular ruling” and “a body blow to the principle of an independent judiciary insulated from popular sentiment” – and out. For example, nationally recognized election law expert (and Horvitz & Levy consultant) Professor Richard Hasen has criticized the vote and opined in his blog that “it is only proper to vote against a sitting judge when that judge has done something ethically improper (such as taking a bribe) or has consistently issued rulings that are unprincipled or intellectually dishonest.”
Current and past California Supreme Court justices have weighed in as well.
The Los Angeles Times quotes Chief Justice Ronald George as saying that the Iowa vote “just illustrated something that has been troubling many of us for many, many years.” George predicted the Iowa result “will pressure judges, or some judges anyway, perhaps even subconsciously, in their decision-making by what would be popular or what might meet the political preferences of the moment.” George proposes doing away with retention elections altogether, a position that newly retained Justice Ming Chin has said he’s getting closer to. Under George’s system, Supreme Court justices would be appointed to a single 15-year term without ever appearing on the ballot. “That would be your one shot,” he said. “There would be no influence, conscious or unconscious, in terms of having to face a possibly political elective process.”
Joseph Grodin, one of three justices whom voters removed from the California Supreme Court 24 years ago, said in the New York Times that an election attack against the judiciary “[o]bviously . . . has an impact on the independence of judges and how they think of their role . . . . But more than that, I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.”