Bench Memos

Missing the Point on Democratic Accountability for State Judges

In Sunday’s Washington Post, two distinguished board members of Soros-funded advocacy organization Justice at Stake wrote an op-ed arguing that nefarious political forces are somehow trying to “intimidate” judges. Let’s take a look at the facts.

The primary example of “intimidation” listed in the op-ed is the recent kerfuffle surrounding the execution of convicted murderer Clayton Lockett, but the op-ed is more interesting for what it doesn’t say than what it does. For those who haven’t been following the case closely, here’s a quick summary: Shortly before their scheduled execution dates, and after exhausting all of their avenues of criminal appeal, Lockett and one other death-row inmate filed a long-shot civil lawsuit challenging a state law confidentiality provision that protects the identity of the provider of the lethal-injection chemicals. The Oklahoma court of criminal appeals repeatedly refused to stay the executions while the civil lawsuit ran through the system. The Oklahoma supreme court, however, was not so particular: The prisoners convinced the supreme court to stay the executions, purportedly as part of the civil suit. In light of the supreme court’s lack of jurisdiction to order the stay, the governor ordered the executions to proceed anyway after a brief delay. During the delay, the Oklahoma supreme court reversed its earlier decision. In addition, one member of the legislature introduced articles of impeachment against the supreme-court justices who had voted for the stay. (The execution ultimately went very poorly, although there’s no reason to think that it had anything to do with the legal wrangling.)

But what the op-ed doesn’t tell you is that the Oklahoma supreme court was completely, totally, and outrageously wrong. It was the Oklahoma supreme court’s decision that triggered the constitutional crisis, not the governor’s refusal or the articles of impeachment. The plain text of the Oklahoma constitution forbids the supreme court from exercising jurisdiction over criminal cases, allowing it to rule only on whether a case is criminal or civil. By framing the issue as “intimidation,” though, the op-ed sidesteps the legal merits entirely and goes straight for the emotional jugular. After all, who is in favor of “intimidation” when a death-row inmate is looking for his day in court? The legal merits of the case are far less flattering to the supposed targets of intimidation, something you’d never figure out without digging deeper.

The same sort of emotional appeal underlies the authors’ objections to other court-related legislation and democratic participation in accountability. Brandishing various unconnected incidents, some from nearly ten years ago, the authors string together an “atmosphere of bullying” that, they say, puts courts under “pressure.” This is not exactly rigorous argument.

Although the op-ed also claims that elections “turn judges into politicians in black robes,” its authors entirely fail to see that in many cases, such as the Lockett case, the judges have turned themselves into politicians. That’s why retention elections exist in the first place: to ensure that misbehaving judges can be removed. Whether it’s the Oklahoma supreme court clearly overstepping its authority in the Lockett case or the New Jersey supreme court micromanaging every aspect of state government based on no more authority than its passing whim, accountability ensures that judicial decisions comport with the laws actually enacted by the people through their representatives. Judges certainly have a crucial part to play, but the rule of law is not the same thing as rule by judges.

This raises a larger point about the debate over the Missouri Plan, which gives the lawyer-industrial complex nearly total control over judicial selection. Missouri Plan advocates frequently reassure citizens that retention elections provide accountability for removal of misbehaving judges. But when democratic accountability through the prescribed mechanism finally becomes likely, somehow “accountability” becomes “intimidation” and “bullying.” That’s a bait-and-switch, and it’s disappointing to see such distinguished former jurists selling the bait.

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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