Judicial Politics

By Dr. Don Racheter

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.”[1]  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.” [2]   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:

Initially, most states followed the federal method, with either Governors or Legislatures appointing judges. . . . by 1900 more than 70% of the states elected their judges through the popular ballot. This movement was largely led by lawyers who sought to instill democratic accountability within the state judiciaries while simultaneously providing judges with a source of popular support to check legislative excesses. . . . During the 1930s, reformers successfully implemented a new variation on judicial appointments aimed at minimizing partisan influence, providing a degree of security of tenure, and maintaining an element of popular control . . . . The election allows for popular electoral control, while the absence of an opponent allows the judge to run on his or her record and avoid the partisan politics of running against another candidate.[3] [Emphasis added.]

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.[4] 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.”[5] [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[6]), and especially those who specialize in the Courts, support my assertions above:

The states with Missouri-plans use a combination of elections and appointments. In effect, this type of plan provides for much greater influence from lawyers than any other selection method. . . . Does a Missouri plan take politics out of the judicial selection process? After an exhaustive study of how the plan had operated in Missouri over a quarter century, two observers concluded that “it is naïve to suggest . . . that the Plan takes the ‘politics’ out of the judicial selection.”[7]

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:

The seven-member Judicial Qualifications Commission is the government body responsible for evaluating and investigating allegations of misconduct by Iowa judges, magistrates, and court employees. The Commission can recommend to the Iowa Supreme Court the retirement, discipline, or removal of a judicial officer or the discipline or removal of an employee of the Iowa Judicial Branch.

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.”[8] So those Iowans who disagree with the Varnam 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.

Endnotes:
[1] Entering “Judicial Politics” and “College Course” into a popular search engine resulted in hundreds of hits. Other prominent institutions like Drake and Iowa also list such classes: https://oias2.drake.edu/pls/PROD/bwckctlg.p_display_courses
http://www.myedu.com/030-106-Research-In-Judicial-Politics/course/s/32168
[2] Karen O’Connor and Larry J. Sabato et. al., American Government: Roots and Reform, Longman, Boston, 2011, p. 128.
[3] James W. Ceaser, American Government: Origins, Institutions, & Public Policy, Kendall/Hunt Publishing Company, Dubuque, IA, 2002, p. 414.
[4] Glendon Schubert, Judicial Policy Making, Scott Foresman and Company, Glenview, IL, 1974, p. vi.
[5] Donald P. Racheter, Iowa Government and Politics, Octagon Press, Muscatine, IA, 2012, p. 48.
[6] As the five-time President of the Iowa Conference of Political Scientists and the Founding President of its replacement, the Iowa Association of Political Scientists, I know almost every political scientist in the state of Iowa. Of the over 100, only five admit to being Republicans.
[7] Richard A. Watson and Rondal G. Downing, The Politics of the Bench and Bar, Wiley, New York, 1969, p. 331. Quoted in Robert A. Carp, Ronald Stidham, and Kenneth L. Manning, Judicial Process in America, CQ Press, Washington, D.C., 2004, pp. 104-105. See also: “None of the mechanisms for selecting judges, including merit selection, have removed the influence of politics.” Christopher E. Smith, Courts, Politics, and the Judicial Process, Nelson Hall, Chicago, 1997, p. 160: “In fact, removing politics from judicial selection does not seem possible…. In operation, merit selection has reduced the influence of political parties and greatly increased the power of the legal profession.” David W. Neubauer and Stephen S. Meinhold, Judicial Process: Law, Courts, and Politics in the United States, Thompson Wadsworth, Belmont, CA, 2004, p. 198: “On the state level bar associations have called for adoption of the Missouri Plan – a method of judicial selection which would greatly enhance bar influence.” Mitchell S. G. Klein, Law, Courts, and Policy, Prentice-Hall, Englewood Cliffs, NJ, 1984, p. 91; “The substitution of bar association influence for political party influence in local nonpartisan elections does not ensure that the “best” candidates are selected; it merely forces judicial candidates to seek the support of a different political interest group.” Smith, op. cit., p. 163; and “While the organized bar continues to support the Missouri Plan, critics of this selection method have raised a number of important objections.” Klein, op. cit., p. 103.
[8] John T. Wold and John H. Culver, “The Defeat of the California Justices,” in American Court Systems, edited by Sheldon Goldman and Austin Sarat, Longman, New York, 1989, p. 329.

Don Racheter is President of the Public Interest Institute, Mount Pleasant, Iowa.

Republished by permission from INSTITUTE BRIEF, a publication of Public Interest Institute