November 03, 2010

Judicial Elections: The Crocodile in the Bathroom Just Got Sharper Teeth

The late great California Supreme Court justice Otto Kaus is perhaps best remembered nationally for a statement he made about judicial elections and the in terrorem effect of judges having to stand for reelection (even retention elections): ""You cannot forget the fact that you have a crocodile in your bathtub...You keep wondering whether you're letting yourself be influenced, and you do not know. You do not know yourself that well."

Now, with the news that three Justices of the Iowa Supreme Court have been voted out of office because of their decision in a gay marriage case, I am sure many judges in states with judicial elections will, consciously or not, allow their fear of being voted out of office affect how they rule on hot button issues. Some say that the Iowa result is a good result because it means we are holding judges accountable. I disagree. Even in a world of judicial retention elections, in my view it is only proper to vote against a sitting judge when that judge has done something ethically improper (such as taking a bribe) or has consistently issued rulings that are unprincipled or intellectually dishonest. In contrast, reasonable justices can differ on the constitutionality of gay marriage bans, and a judge who votes one way or the other on that issue should not be voted out of office because of a single, principled vote.

I think the Iowa result is only going to embolden groups to fight even harder in judicial elections next time around. Dahlia Lithwick and I tried to show how ugly the world of judicial elections has become. Voters in Nevada, who did not listen to Justice O'Connor's wake-up call, soundly rejected a ballot measure that would have moved the state from competitive elections to appointment followed by retention election. I am not aware of any state that has moved from any kind of judicial election toward either an appointment model or a federal model of appointment. So I'm not sure what the answer is, but I'm very pessimistic about how elected judges are going to be able to handle the pressure.

Posted by Rick Hasen at November 3, 2010 08:56 AM