Bench Memos

Take Justice O’Connor… Please!

Retired justice Sandra Day O’Connor is now done remaking federal law from the Supreme Court, which frees her up to dabble in state court issues.  She has particularly devoted herself to a crusade against judicial elections, and was in Iowa this week as part of a panel rallying support for Iowa’s judicial selection system and the three justices whose retention elections are making headlines.  Although it is almost unheard of for sitting judges to lose their retention elections in any state that uses the process, these justices are in serious jeopardy because Iowans are so outraged at the recent state Supreme Court case that threw out a statute limiting marriage to a man and a woman. 

In Iowa judges are selected by a committee that is unaccountable to the people, but then stand for retention elections at the end of their eight-year terms.  Now the people of Iowa are being told that they should not exercise even that small right to rein in an out-of-control judiciary, lest it lead to what some of the other Iowa panelists described as “the deterioration of our impartial judicial system,” “a step that’s fraught with peril” or even — gasp! — “the first step toward elected judges.”  In Justice O’Connor’s defense, she apparently limited her comments to arguing that the Iowa selection system should not be replaced with pure elections — an option that isn’t actually on the table.  But her presence on the panel certainly lent stature to the cause, and was misinterpreted by at least some media outlets as direct support for the Iowa justices.  It seems that at least some of her remarks invited that conclusion, such as her statement that “as Iowa goes, so goes the nation, and I wish the rest of the nation would hurry up and go.”

Aside from the unseemliness of a retired Supreme Court justice getting so involved in state politics, there is the further concern of exactly whose front woman Justice O’Connor is (unwittingly?) becoming.  The American Justice Partnership has just published a study examining the funding sources for groups trying to eliminate state judicial elections.  Its findings are impressive: the campaign against elections (which, ironically, often decries elections because of all the money involved) has been systematically financed with tens of millions of dollars from George Soros’s Open Society Institute.  This money has been channeled through dozens of organizations to promote anti-election campaigns. 

Interestingly, many of these same organizations, which once championed a “merit selection” process including judicial nomination by a committee of lawyers and included retention elections as a nod to public accountability, now decry the campaigns against the Iowa judges.  Apparently they only like judicial elections when the results are a foregone conclusion and the real decision-making is left in committee.  And, as I have discussed before, there is good empirical evidence that committee determinations are no less political than elections, just more heavily weighted toward liberal outcomes.

The upcoming retention elections in Iowa are an opportunity for the voters in Iowa not simply to get “retribution” for an unpopular decision, but to exercise their right to rein in a judiciary that has become unmoored from its legal grounding.  Accountability for that type of judging is exactly what our states need.  That, and for Justice O’Connor to take a vacation and start appreciating her retirement.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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