In another 16 states, high court judges are chosen in some other way but voters weigh in on keeping them. Some of the most prominent champions of judicial independence, including retired Supreme Court Justice Sandra Day O’Connor, have pointed to this approach — merit selection coupled with retention election — as a model for insulating the judiciary for political influence.
But the 2010 campaign illustrates the downside of judicial accountability and the threat of growing politicization of retention elections. In Illinois, where Supreme Court justices are chosen through elections and then subject to a retention vote, the decision about whether to keep incumbent Chief Justice Thomas Kilbride turned into a multimillion-dollar battle in the wake of Kilbride’s vote to overturn a state law limiting damages in medical malpractice suits. Kilbride won.
You might look at the Iowa results as a reasonable illustration of accountability in action. After all, what’s the point of building in accountability unless you’re willing to let voters hold judges accountable? But there is also a difference between giving voters the opportunity to remove judges who behave in inappropriate or unethical ways and letting retention elections turn into referendums on unpopular rulings. The courts may follow the election returns, but I don’t want judges making rulings with an eye on their electoral fortunes.
I agree with the Iowa court’s same-sex marriage decision, but I hope I’d feel the same way if the court had ruled in the opposite direction and gay rights groups fought to remove them. I vehemently disagree with the U.S. Supreme Court’s campaign finance ruling in the Citizens United case, but those who suggest the impeachment of Chief Justice John Roberts for that decision are even more off-base than the critics of the Iowa justices. Oregon Democratic Rep. Peter DeFazio told The Huffington Post that he was “investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn’t be a judicial activist.” DeFazio can’t be serious.
There is an inherent tension between independence and accountability. When it comes to the judges — and when judicial activism is in the eye of the beholder — the system needs to be rigged, as the founders wisely did, in favor of independence.
Ruth Marcus writes for The Washington Post.