As a neutral decision maker of many years, I am always intrigued by the pressures that can be brought to bear on the process, and how judges or decision makers handle that pressure. When I was a hearing examiner with the New Mexico Public Employee Labor Relations Board both the Director and I would periodically receive communication from the then-Governor's Chief of Staff, urging one resolution or another as "appropriate." I had also occasionally received calls from or at the behest of a union president who had recommended me to the Board, seeking some particular outcome or action. These and similar moments inevitably create some tension, but in my experience ALJs are generally able to sidestep the tension.
Because of this background, though, I have both sympathy and a healthy dose of "so what's new" for state court judges who find themselves pressured by an angry electorate. You may recall, in 2010, three Iowa Supreme Court Justices lost their seats during retention elections in response to Court having earlier ruled that an Iowa statute limiting marriage to one man and one woman violated the State's Equal Protection Clause. It is
anticipated that the four remaining justices will face challenges in the next retention election, and similar challenges have also occurred in recent decades in California, Nebraska and Tennessee, involving the death penalty.
anticipated that the four remaining justices will face challenges in the next retention election, and similar challenges have also occurred in recent decades in California, Nebraska and Tennessee, involving the death penalty.
Typically, states either have their judges appointed by the Governor or other body, or they are elected by the public. When I applied to be considered for a New Mexico District Court opening in 2009, several lay folks asked me for my views on the relative benefits and dangers of elected versus appointed judges. I tried to explain that, in my view at least, either are subject to abuse. Elected judges could pander to and/or be political pressured by the general voting public, but appointed judges may pander to and/or be subject to improper pressure from elected officials. Is either outcome a good one? No.
That is why some few states, such as New Mexico, seek a compromise. In New Mexico, judges are initially appointed by the Governor, upon recommendation of an august and diverse panel; then, they must face a single general election, in which they must beat any opponent by a majority vote; thereafter, they will face only retention elections, in which they will remain in office if a majority of voters "vote yes." The public policy behind a retention vote system, in particular, is that it will act as a curb or brake on an angry, unruly mob, which might not understand the finer points of legal reasoning and constitutional restraint.
However, as we saw in Iowa, and before in a handful of other states regarding other hot button issues, it doesn't always work. In the Iowa example, ousted Justice Streit (Ret.) observed that the Court had handled thousands of cases since Iowa became a state in 1846, about 1,000 of which sought protection of constitutional rights by invalidation of a state statute, and 150 of those in which an Iowa legislature's enactment had been declared unconstitutional. See Justice Patricia Timmons-0Goodson, "An Interview with Justice Michael J. Streit (Ret.)," The ABA Judges' Journal, Fall 2011, Vol. 50., No. 4.
This, in my view, is simply a fact of life. Decision makers are subject to pressure in a democracy. The only decision makers who are not subject to any pressure will be dictators and autocrats. We do the best we can in the system that we have. In any event, I think there's good cause to be positive and thankful that judges are so infrequently ousted. Using the Iowan example again, imagine three unsuccessful retention elections (and possibly up to seven, eventually), out of 150 cases overturning legislation that presumably derived from "the will of the people."
Accordingly, I find myself a little perturbed when I hear judges or lawyers declare that "[t]he courts must .. call on the political forces of the state to protect the branch--the branch least able to defend itself." Id., attrib. to J. Streit (Ret.) What does that mean? Does the proponent want a life appointment for all judges? Is that a good idea, or are judges just as subject to becoming arrogant, incompetent and/or unresponsive as any other leader or decision maker? Also, why is the judiciary less able to protect itself than, say, the legislature or executive? Do not all leaders have to choose a course of right action and expect to be judged on their action, as explained or not to the public?
Ousted Iowan Justice Marsha K. Ternus (Ret.) notes that the Iowan election "will have an impact on those aspiring to the judiciary," because "men and women of character will think hard before giving up their current career [to become a judge] knowing that they could possibly lose their judicial office by performing their duty." See Judge Annette J. Scieszinski and Neal Ellis, "The Gamble of Judging," ABA Judges Journal, Fall 2011. This is true, but it seems that it is true for many people performing difficult jobs subject to review-it also seems to me that the truth does not a prior call for some legislative or constitutional fix, if that is what the judiciary or bar desire.
There is no doubt about it--a judge or other decision maker bears a taxing burden of making difficult decisions that will, in many cases, anger at least half of the parties and interests involved. Iowan Justice Ternus (Ret.) accurately stated that judges must "[t]ake the high road. Do not behave like a politician," but "uphold[] the independence of the judiciary, real and perceived, is more important that any one judge retaining his or her position on the bench." Id. And, education of the public will frequently play an important role in avoiding ugly retention elections, as Iowan Justice David L. Baker (Ret.) noted. Id.
However, I do not agree with those who would protect judges from retention elections altogether, or would advise judges to remain quiet and remote in an ivory tower. Rather, I urge the creation of a rigorous judicial evaluation system, such as we have in New Mexico, to help educate the public about the strengths and weaknesses of judges up for retention, from the view point of attorneys, staff and litigants. I also agree with Marla N. Greenstein, that judges can thoughtfully and ethically respond to public outcry over their rulings, and indeed must do so when it is necessary to combat false statements that erode public confidence in the judiciary. See Greenstein, "The Ethical Imperative to Respond," The ABA Judges' Journal, Fall 2011.
In the end judges are not so different from other principled decision makers. Let all decision makers shoulder that responsibility with dignity and grace, giving thanks for the easy cases and the easy times, while praying for the fortitude to appropriately change what we can, and for the patience to deal gracefully with what we cannot change. In the end, our basic task is to uphold the integrity of and public confidence in the judiciary and, in that regard, how we lose can be just as important as how we win or play the game.
