Iowa Supreme Court BuildingBy 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.

[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:
[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

  1. You make interesting points, Don, and they’re well supported as far as they go, but let’s clear away the underbrush around your argument so the heart of this issue is revealed. As I see it, your view in this piece is that IN STATES WITH the Missouri plan and judicial retention, it is valid for voters to retain (or not retain) judges based on individual decisions or politics/ideology. But I think this skirts the issue, as the key question is not whether it is “valid” for a voter to reject a justice based on a decision they don’t like, but whether it is wise, or broadly, good for the justice system if most voters do so. For example, I don’t think it is “invalid” for a voter to cast a ballot for Obama because they say he is a good speaker, but as a civic teacher I absolutely believe this is not a wise reason to vote

    Second, you set up a “straw man” when you say the key objection of those voting “No” on retention is that judges should be NON-political. I don’t know anyone who thinks the judicial system is 100% politics or ideology-free.The real questions are:

    (1) WHERE should any politics insert itself (whether in appointment and confirmation like the federal level, Missouri selection, or outright election campaigns for judges)?

    (2 and 3) What level of ACCOUNTABILITY is best (life terms after a small-r republican appointment, periodic retention votes with longer terms, or direct election campaigns with short terms and the trappings of electoral politics: $, ads)? And should a SUPER-majority or just a majority be needed to remedy a ruling and/or initiate accountability?

    (4) What is better for the operation and fairness of a justice system, for judges to be MORE or LESS driven by political pressure and these short-term constituent forces?

    The first question is about the best PROCESS for appointing or selecting judges, and whether we believe, like the Founders, a republican (indirect) appointment process is preferable so as to create the most impartial judicial system as practically possible, or whether a form of direct democracy is better. Most philosophical conservatives in U.S. history have sided with the former, not the latter.

    The second and third questions are pertinent to the recent spat between Chris Rants and Chuck Hurley about whether the right means to dispute a decision is to work for a legislative and constitutional SOLUTION, or to focus energies on punishing offending judges, with the hope that it has a deterrent effect. A problem with the latter view is that I can easily see Hurley and others “crying foul” if liberals successfully used this tactic to vote out Scalia-like justices in retention states. The advantage of the former is it’s a normal, constitutional process to remedy bad decisions a super-majority, not just a majority, of voters would like to change.

    Finally, we have evidence in the states on issue #4, not just from the ABA but from non-partisan groups like Chamber of Commerce, that partisan elections for judges have negative effects on state justice systems; many Southern states are examples.

    So, in reply:

    (1) What do you think is an ideal selection process? You seem to contradict yourself when you defend the Missouri plan, even as you say it does not do what it intended.

    (2) Do you think more direct democracy is what we need in state judicial races, contra Federalist #78 and the Founders stated ideals in support of judicial independence?

    (3) Do you think more explicit politicking in the justice system will make justice more fair in Iowa, or are you just conceding it is “valid” for voters to act as if the ends (no gay marriage long term or “saving other freedoms” from judicial activists) justify the means (direct dem) in this case, whereas in most cases you prefer republicanism?

    In rhetoric, you sound more like a populist (“Political reform [makes] it easier to divert power/control from ordinary folks to elites”) than a constitutional conservative or a traditional small-r republican theorist to me. Hopefully you can clear up the confusion.

    1. “I don’t know anyone who thinks the judicial system is 100% politics or ideology-free.” I can name two organizations that try to present our judicial system as being politics-free.

      1. The Iowa State Bar Association
      2. The Justice, Not Politics group

      I’d prefer that we move to a federal system that way our elected representatives, not the bar association can decide on appointments.

      I’m curious Kedron, when should we vote no on a judge? What would your criteria be?

      1. I think to an extent a “politics-free” theme is an oversimplification, which we all know easily happens in political debate.

        The bar should be high. Lack of fitness to perform the job, malfeasance in office, any felony conviction, or corruption are perfectly fine reasons.This is similar to the grounds most U.S. states use in places where they have Recall elections for elected officials. Yet, it is not so high as a standard for impeachment (treason or high crimes, misdemeanors) used at the federal level for presidents and judges. I think we need to move to nomination by the governor and confirmation by the legislature for the selection process for Iowa Supreme Court justices and then only use the normal constitutional process of impeachment in extreme cases.

        The advantages of the impeachment process as practiced in the states today are (1) the “grounds” are high enough that the process is rarely abused for political gain by either side and (2) it is a legislatively-driven process and so a truly republican solution. I think that’s what we’re all hoping for here, even if many are caught up at the moment with seeking revenge on Wiggins et al, which I don’t think is effective in reaching any real policy goal and seems to me a particularly strange and unseemly tack to take given that the decision was unanimous.

        On terms of office, life terms have the advantage of stability for a judicial system, which those of conservative temperament see as a good thing. You don’t have to go with life terms, however, as 8 or 12 year terms with re-appointment would be fairly stable and give executives/legislatures a chance to be responsive to political pressure. The con of that system is they would be responsive to political pressure. 🙂 Meaning: changes in the party of the exec or legislature will likely result in moderately high turnover.

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