Voting on Judges Is Bad for Equality and Bad for Society

If at first you don’t succeed, try, try again.

The folks over at the National Organization for Marriage (NOM) know that all too well. After they failed to gain any traction in Washington, D.C., they set their eyes on Iowa.

Back in 2009, the Iowa Supreme Court stunned everyone when they unanimously ruled in favor of marriage equality. But on Tuesday, Chief Justice Marsha Ternus and Justices David Baker and Michael Streit were voted out of office largely over their marriage ruling.

While there were many good things that happened for LGBT rights on Tuesday, including at least 106 openly gay candidates winning elections, the outcome of this race is a sobering reminder of how far we have to go.

Bob Vander Plaats, rabidly anti-gay gubernatorial reject, ran the statewide campaign that ousted the three judges. USA Today described the race like this: “The retention challenge triggered a battle never seen in Iowa's judicial history. Television, radio and Internet ads portrayed the justices as both activists and referees. Robo-calls urged a 'no' vote. U.S. Rep. Steve King embarked on a statewide bus tour to rally 'no' voters.”

This is a nightmare scenario for judges, minorities, and a modern society. The outcome of this election raises questions about the role of the judiciary, the independence of the judiciary, and our process for judicial retention.

Judicial activism is a popular conservative meme, used to attack any judge whose decision a conservative disagrees with. There is no uniform way in the conservative movement to apply this title. While a judge who rules in favor of marriage equality is called a judicial activist for relying on precedent, judges who overturn precedent in favor of corporate interests are not. The truth is there is no such thing as a judicial activist. And as a former U.S. Supreme Court Justice explains, a strict construction of The Constitution doesn’t work. Judges must do their best with the information they have in the times that we are in to interpret laws and principles written in a different time. And if they rule against you, you can’t simply call them a name, though this is a popular right wing tactic.

An independent judiciary is essential to a free society. Judges are not politicians and shouldn’t be considering public opinion or political ramifications. Landmark judicial cases like Brown Vs. Board of Education would have never happened if the Supreme Court had to worry about the will of the President, or worse, of the voters. Imagine Thurgood Marshall having to stand for re-election. Southern states would have never voted to retain him. It’s important that judges have job security so that they are free of these considerations. If the Constitution holds any weight, it shouldn’t be subject to a bare majority vote. If a simple majority can make these types of decisions, then the Constitution is simply popular opinion and not a document of intrinsic founding values.

That’s the danger in this outcome. If a judge in a neighboring state worries about re-election, they may not choose to rule based on the law. These judges are human and become worried about re-election.

Beyond the absurdity of voting for judges, we have to face the sobering fact that the voters in Iowa were not with us. Yes, the misleading campaign had a lot to do with it. But we weren’t there to stop it. Moving forward we must make sure that judges position are safe and that mob rule does not replace the rule of law.

Photo credit: Alan Light