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In an interview with The Iowa Independent, officials shared that fair courts advocacy group, Justice Not Politics, is “preparing for a fight to keep politics out of the retention vote.” The fight is expected to surround the retention election of Iowa Supreme Court Justice David Wiggins. Like three justices ousted in the 2010 retention election, Wiggins was part of the Court’s unanimous decision in 2009 to uphold gay marriage. Bob Vander Plaats, chief executive of The Family Leader, successfully led the 2010 campaign to vote the three justices off the bench and has indicated that conservative groups will likely turn that effort toward Wiggins in 2012. However, this time Justice Not Politics and gay rights advocacy organization, One Iowa, will be among those ready to defend with a powerful weapon: education.

“We want to get information out there about our judicial system and the purpose of a retention vote,” said Connie Ryan Terrell. “There was a lot of deliberate misinformation (about the courts) given by Bob Vander Plaats in 2010.” One Iowa Executive Director Troy Price added, “Right now, we intend to continue notifying our members of attacks on the courts, and to counter the messages from those trying to inject politics into the courts.”

Ryan Terrell explains that judicial retention elections should be “based on how well [judges] do their job, and if they based their decisions in accordance with the constitution. It’s not supposed to be about if you agree or disagree with their decisions.” In order to protect the independence of our judiciary, the public must remember to keep politics out of retention elections.

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.”

A column in Time Magazine makes the case for getting rid of judicial elections. Author Adam Cohen, looking at the recent retention elections in Iowa, observes “elections are a terrible way of choosing judges — whether the decision is putting them in office or removing them.”  Cohen prefers the federal system of presidential appointment, Senate confirmation and life tenure.  He argues that this ensures the critical independence of the judiciary.

Cohen also focuses on the money problem and the skyrocketing cost of judicial elections:

The money is almost always intended to buy justice in one way or another. Business groups funnel contributions to candidates who will let businesses trample on the rights of workers and consumers. Plaintiffs’ lawyers, on the other hand, want judges who will uphold sky-high damage awards — and large attorney’s fees.

Over at Slate, Dahlia Lithwick offers a compelling analysis of the problems inherent in the effort to oust three Iowa Supreme Court justices because of their votes in a gay marriage case.  Lithwick, focusing on the recent speech given by Justice Sandra Day O’Connor in favor of Iowa’s Merit Selection system, explains:

[W]hat O’Connor was arguing for has nothing to do with judicial politics or gay rights or constitutional interpretation, and everything to do with money and judicial elections. That shouldn’t be a partisan issue.

We agree and are pleased that in Pennsylvania, Merit Selection is an issue that unites Republicans and Democrats, conservatives and liberals, business-oriented organizations and civic, religious and good government reform groups.  The challenge is to translate what has become a growing concern about the corrosive effect of money in judicial elections into the impetus for meaningful reform.

As Lithwick explains:

What frightens O’Connor about judicial elections isn’t the idea of more accountability or transparency for judges: She favors that. . . . What scares O’Connor is that the millions of special interest dollars pouring into these judicial election campaigns will start to influence judges. She also worries that millions of dollars of special interest money pouring into judicial races tells the public exactly what  [the leader of the vote no campaign] is trying desperately to prove in Iowa: It’s not just justice that can be bought and sold to the highest bidder, it’s the justices themselves.

As regular readers know, we try to bring you stories about Merit Selection from all over.  Today, we want to share a letter to the editor of the Telegraph Herald in Dubuque, Iowa.  Chad Cox wrote in to praise the Merit Selection system.  His key point:

In Iowa, any applicant with superior professional qualifications will get consideration, regardless of political involvement or connections. These applicants need not raise funds, advertise or make campaign promises, all of which can compromise judicial independence and thereby erode public confidence in the judiciary.

The letter concludes with this thought: “Iowans can and should take pride in our system of merit selection.” We don’t think Pennsylvanians have the same pride in our judicial election system.  It’s time for a change.

An editorial in the Des Moines Register praises the Merit Selection system Iowa uses to select its judges:  “Iowa’s system is far better than electing judges, which introduces politics and the taint of campaign cash into the judiciary.” We, of course, agree, and hope that Pennsylvanians soon get the opportunity to decide if we should change the way we select judges.

The editorial also looks to the recent retention election results in Iowa as evidence the system is working.  This year, all the judges on the ballot were retained.  The editorial views that as a positive sign:

In the past 35 years, voters have removed only four judges, which is how the process should work. Removal shouldn’t be based on the popularity of decisions, politics or ideology. It’s merited only when there is evidence of misconduct or that a judge is unfit, and where the court system’s judicial-disciplinary process has failed.

What the editorial describes is a meaningful retention process as an integral part of a Merit Selection system.  This has been a key feature of the Merit Selection legislation introduced this past year in Pennsylvania.

Iowa has used a merit selection process since 1962. Although their process is not perfect, observing judicial elections in sister states has confirmed for Iowans that they made the right choice. A June 11, 2008, editorial in The Des Moines Register addresses the problem of money in judicial elections:

Candidates must raise big money from potential litigants and law firms, and they wage campaigns that may suggest promising to take certain legal positions in exchange for votes.

This summary hits the nail on the head. No party or attorney wants to try her case against opposing counsel who has made monetary contributions to the presiding judge. No ethical judge will base her decision on which attorney’s pockets were deeper, of course. But the appearance of impropriety threatens to sully any elected judge’s reputation and threatens the judiciary’s unbiased, neutral reputation overall.

As the editorial notes, “Politics cannot be completely removed from judicial selection, but politics should not dominate, lest candidates be expected to make promises about how they will rule.”

We agree with this wise assessment. And though we can’t get politics completely out of the process of selecting appellate court judges, we can get the money out. We should follow Iowa’s good example and choose Merit Selection.