Bench Memos

But She Doesn’t Know the Territory!

The Washington Post reported on Thursday that retired justice Sandra Day O’Connor is going to drop in on the little people of Iowa next month to instruct them that it’s just bad bad bad to want to hold judges accountable at the polls for their tyrannical usurpations of political power:

Conservative activists are trying to oust three judges on the state Supreme Court whose unanimous ruling last year legalized same-sex unions. . . .

The effort in Iowa worries not only gay rights advocates but some legal experts who say it is wrong to punish judges for an unpopular decision. For critics of judicial elections, Iowa is offering a compelling example of the peril of subjecting judges to voters’ whims.

Backers of the campaign say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority on same-sex marriage and other issues. . . .

The controversy has drawn the attention of the Iowa Bar Association and legal experts around the country, including former U.S. Supreme Court justice Sandra Day O’Connor, who is slated to address the matter at an event here next month. O’Connor for years has spoken out against the judicial elections, arguing that they create “politicians in robes.”

The Post’s Sandhya Somashekhar might honestly be making an effort to be evenhanded in the second and third paragraphs excerpted above.  But “overstepped its authority” would be an apt description of a state supreme court that had ruled, say, that a confession can be thrown out because police did not get a Miranda warning’s recitation letter-perfect.  When judges create a right to same-sex marriage out of whole cloth, that’s more than “overstepping.”  That’s a direct assault on the constitutional order, and the effort to defeat the offending Iowa jurists in this year’s retention elections is understood by its advocates to be an attempt to restore something severely damaged by the judges.

Somashekhar talked to “legal experts” concerned that the judges are threatened with being “punished” for “an unpopular decision.”  Removal from office for a betrayal of trust could, I suppose, be described as “punishment.”  But the Iowa record–no justice of its supreme court has ever been removed before in a retention election–suggests that mere “unpopularity” has never moved the people of the Hawkeye State to precipitous behavior.  Couldn’t Somashekhar find any “legal experts” to express the other side of things here?  (Next time try Ed Whelan, whose e-mail address is published on this site!)  As for the “peril of subjecting judges to voters’ whims,” how about the peril of subjecting voters to judges’ whims?

And that brings us to Sandra Day O’Connor, one of the most effective and successful “politicians in robes” ever to sit on the Supreme Court of the United States.  She is dedicating her declining years to the cause of “judicial independence,” which for her means: no judicial elections in the states; no talk of reform in the federal judiciary; no probing questions during Supreme Court nomination hearings; no wild talk of impeaching federal judges no matter how obvious their usurpations; and, in fine, no criticism of the judiciary that actually calls the judges what they are, usurping tyrants.  Justice O’Connor, you see, is dead set against us mere voters “politicizing the judiciary.”  Don’t we understand that that’s the judges’ job?

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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