It’s no secret that last week’s judicial elections had some shocking results. Three Iowa Supreme Court justices failed to win retention elections, due entirely to a ” vote no ” campaign based on their votes in a unanimous decision upholding the right to gay marriage. An Illinois Supreme Court justice won retention in a hard-fought, expensive campaign related to his rulings about damages caps. And in Colorado, several justices remained on the court despite a ” vote no ” campaign.
Some have argued that these elections demonstrate that electing judges is the answer and have predicted that the Merit Selection movement will suffer as a result. We disagree. As the Philadelphia Inquirer argued in an editorial earlier this week, these recent retention elections show that Merit Selection works and does not take any power away from the voters:
Even with proposals to switch only the state’s appellate courts to appointments, labor unions, trial attorneys, pro-lifers, and other merit-selection foes still contend that appointing judges denies voters’ rights. Well, Iowa proves them wrong: Voters had their say when the judges came up for a retention election.
We may think that a particular retention campaign was misguided and wrongly focused on ideology and the popularity of a decision rather than on the factors we believe should drive such decisions: whether a judge behaved fairly on the bench, was timely in completing work, was regarded as writing sound, fair decisions and gained a reputation for honesty and high ethical standards. But disagreeing with a campaign or being disappointed in an election outcome does not mean the Merit Selection system failed. If there are to be retention elections, voters must have the freedom to make good and bad decisions in the ballot box.
Retention elections have never been the perfect solution but they have been the component of Merit Selection that guarantees a strong, clear role for the public in the judicial selection process. In theory, these elections should be different – with candidates running unopposed on a nonpartisan yes/no ballot, there should be no need for expensive campaigns and no overt politicization of the judge on the ballot. For much of history, this has proven to be the case: judges didn’t raise money, most were retained; on occasion, retention was used to get rid of a judge that voters felt should no longer be on the bench.
In recent years, some retention elections have become more high profile, including attracting special interest money. But this seems to us to be more a factor of particular hot button issues than the inevitable product of the retention system. It is our job to ensure that our courts remain special institutions where money, popular opinion and partisanship cannot hold sway.
Retention can be what it was intended to be: a tool that guarantees that the people can weigh in on a judge’s performance, without becoming a weapon of partisanship and special interest. The antidote to what happened in Iowa is better education campaigns – about the constitutional roles and obligations of our courts and judges, the purpose of retention elections and the problem with having judges who fear they must conform to popular will. Sometimes that campaign will work; this time, it did not. But for those of us who believe Merit Selection is the better way and who believe retention maintains a strong role for the people in the judicial selection process, that is a risk we are willing to take.
The point is: Merit Selection works. Iowans voted out judges they didn’t want on the bench. We disagree with those voters’ motivations, but we believe it’s important they had the opportunity to weigh in. As the Inquirer notes “Most Iowa voters were harsh and arbitrary in their assessment of the three justices, but no one can say that voters were denied their voice.”
, judicial elections
, Merit Selection
, Philadelphia Inquirer