Dec. 6, 2011
Iowa law professor suggests judges should campaign for retention, or states should change law
During Iowa's 2010 election season, the three justices of the state's Supreme Court were noticeably quiet as conservative groups outraged by their decision legalizing gay marriage angrily and emotionally argued for their removal.
Todd Pettys, a professor of the law at the University of Iowa, said that silence wasn't unusual. Judges and justices have historically been reluctant to engage in the kind of campaigns typical of politicians running for office. Such campaigns, they worry, might involve taking positions compromising their judicial integrity, or accepting campaign money that could create a conflict of interest.
But Pettys believes the results of that election -— all three justices were removed from the bench -— show that judges may need to abandon their reluctance to campaign during retention elections.
"The 2010 elections clearly signaled that at least as far as state's high courts are concerned, the days of reliably quiet retention elections are over," Pettys says. "They demonstrate that judges in retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny."
Iowa was not the only state where groups unhappy with judicial decisions attempted to remove the judges and justices who made them. Colorado, Illinois, Kansas, Florida, and other states saw similar campaigns. But the most notable was in Iowa, where conservative groups led the successful effort in reaction to the Supreme Court's unanimous Varnum v. Brien ruling in 2009 that gay marriage was legal in the state.
Pettys believes the justices were turned off the bench because the arguments made to keep them on the bench were ineffective with voters. The anti-retention campaign was highly organized and made deeply emotional arguments accusing the justices of being activists whose radical ruling imposed gay marriage on an unwilling public.
Meanwhile, he said pro-retention groups were much quieter and made mostly intellectual appeals focused on judicial independence, arguing that Iowans should not use retention elections to oust judges in response to controversial rulings.
"Arguments in favor of judges' retention rely upon the claim that ousting judges in response to their controversial rulings is intrinsically inconsistent with the rule of law and reflects a failure to understand the work that we rely upon judges to do," Pettys says. "They also contend that if voters oust a judge because they find some of his or her rulings objectionable, then a variety of undesirable consequences will follow, such as judges letting the fear of political consequences influence their reasoning, or feeling compelled to develop conflict-producing relationships with powerful donors."
But those arguments fell flat with Iowans. They failed to persuade angry anti-retention voters to change their minds, and did not convince enough otherwise indifferent voters to turn the ballot over and check the box for retention.
One response to these anti-retention movements, he says is that "judges and their defenders should set aside their historic reluctance to engage citizens in civil discourse about controversial rulings and their legal and moral underpinnings." He noted the U.S. Supreme Court ruled in 2002 that such campaigning does not violate a judge's professional responsibilities.
Otherwise, he says "we should abandon judicial retention elections altogether and limit appointed state judges to single terms of a relatively short duration."
Pettys' paper on the topic, "Judicial Retention Elections, the Rule of Law and Rhetorical Weaknesses of Consequentialism," will be published in a forthcoming issue of the Buffalo Law Review. The paper available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1931053.
STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500