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Thursday, January 13, 2011

Judicial Impeachment vs. Non-retention votes

To follow up on my post last week about the judicial retention elections in Iowa, I thought it was worth pointing out that Bob Vander Plaats (the self-appointed leader of the anti-justice movement) has now initiated a movement to impeach the remaining justices on the state supreme court.  When it became apparent that the justices would not heed Vander Plaat’s call to resign, he decided to up the ante.

Jesse Choper and Herma Hill Kay have begun circulating a letter protesting this movement (which I will certainly sign), in which they appear to reluctantly concede that the non-retention vote was a legitimate response to the same-sex marriage decision—but insist that impeachment clearly is not.  As I wrote earlier, I’m not so sure about the virtues of the retention vote in this context, either.  

I’m wondering if people think there is a meaningful distinction between retention elections (in states that have them) and impeachment efforts.  If, as Choper and Kay point out, Iowa law prohibits judges from deciding cases in a manner “swayed by public clamor or fear of criticism”, does it really matter whether that clamor or criticism comes in the form of a retention vote or an impeachment proceeding?  Probably not.  But does that mean that neither method is appropriate for removing a sitting justice based on a constitutional decision?  Are retention votes different from impeachment?


Posted by Ian Bartrum on January 13, 2011 at 02:21 PM | Permalink


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Normally I wouldn't respond to a comment so long after the discussion ended, but I just have to ask... wherever did you get the idea that the judiciary was meant to serve the "majority will of the people"? I just have to say that this premise is exactly wrong, and is the very reason why retention elections raise structural questions. Courts are meant to apply the law--including the equal protection clause--most especially when the rule of law is threatened by majorities.... What would you think if a majority of Iowans voted for a law that made it illegal to own any kind of gun? Wouldn't you want a court to step in and enforce the Second Amendment rather than the "majority will"?

Posted by: ian bartrum | Mar 22, 2011 10:03:37 PM

The judiciary was always meant to be the weakest branch of government. It was to serve the majority will of the people. The process of impeachment was specifically given as a check on the power of the judiciary. Impeachment was intended to be for political offenses...usurpaton of power, mal-administration and unconstitutional opinions.

On a state level retention votes are another method of a check on the judiciary. That the judiciary in Iowa found the definition of marriage between and man and woman only unconstitutional illustrates the danger of thinking it's okay for the judiciary to behave as a legislator. This idea that the judiciary could legislate was repugnant to our founders and should be to you too.

It was always feared our Constitution would be degraded by a loss of morals, consolidation of power into one branch of government or thru governing by debt. I would say we are three for three.

Posted by: Alex | Mar 22, 2011 6:53:48 PM

Is it Iowa wrong for voters to decide to retain or dismiss based on what they think of a judge's rulings, but just dandy for US senators to decide to confirm or not on the same basis?

Or is it simply the US Senators are more easily swayed by pressure groups we happen to like than are Iowa voters?

Posted by: Shalom Beck | Jan 17, 2011 8:51:18 AM

I think you all are right on all counts, and I think this is where we ended up last time, right TJ? Proper balance point. I would do less referenda, because I generally distrust "voters". Many others (perhaps rightly) distrust courts. And the system as is generally does seem to do an adequate job guarding judicial independence; with some notable exceptions....

Posted by: Ian Bartrum | Jan 13, 2011 10:08:47 PM

Ian, I suspect I am more comfortable with voter control than you are, so referenda that turns on a particular philosophy/decision does not trouble me as much as it seems to do to you. But I think we have reached consensus on Howard's point that to the extent we are going to have referenda on judges then voters will always consider the policy outcomes that the judge will reach. If you don't like voters doing that, then the only solution is fewer referenda.

Posted by: TJ | Jan 13, 2011 9:31:51 PM

I don't believe there is any way to logically limit voting by the public or the motives that individual voters may carry into the voting booth, unlike the limits you might place on legislators. If you design a judicial selection system that includes popular input at any point in the process, you are explicitly and willingly sacrificing that portion of judicial independence that immunizes judges from reprisals simply for the content of their decisions. You gain something in judicial accountability, of course, then the question is what you believe is the proper balance.

Posted by: Howard Wasserman | Jan 13, 2011 8:11:25 PM

You may be right about the distinction between "philosophy" and "decision"; I was trying to find some way that a referendum might have a justifiable role in influencing judicial proceedings. I'm afraid that I'm having a hard time coming up with any. If we indeed expect judges to protect unpopular minorities and/or something like the "rule of law", you're probably right that a referendum on a particular philosophy/decision may never be appropriate...

Posted by: Ian Bartrum | Jan 13, 2011 6:54:56 PM

Ian, the distinction between "judicial philosophy" and "a particular decision" seems to me to be fine to the point of nonexistence. Of course, a judge's judicial record encompasses all of his decisions, not just one decision. But it seems absurd and impossible to require giving equal weight to every philosophical issue. Voters care about, and we expect them to care about, some issues more than others. If voters just really, really care about same-sex marriage and not, say, the scope of the present sense impression hearsay exception, what can't they care only consider the judge's "philosophy" on same-sex marriage, and do so by the cases he decides on the same-sex marriage issue?

The other move you can make is to define "philosophy" at such a high level of abstraction that it obscures the differential weighing. You can say that it is legitimate for voters to consider philosophy at high levels of abstraction (i.e. is the judge "liberal" or "conservative") but not at low levels of abstraction. But a high level of abstraction is just an aggregation of a lot of particular issues with some arbitrary weighing (e.g. positions on abortion, same-sex marriage, religion, procedural protections for accused criminals, etc. etc.), and to say that only "philosophy" at high level of abstraction is legitimacy is just saying that voters' own weighing of the salience of particular issues in the process of aggregation is somehow not entitled to respect.

Posted by: TJ | Jan 13, 2011 5:17:47 PM

I guess my real question is whether we SHOULD think of retention as more free floating. Maybe free floating enough to allow for votes on "judicial philosophy", but not so free as to allow for retaliation against a particular decision?

Posted by: Ian Bartrum | Jan 13, 2011 4:04:24 PM

Impeachment is not a free-floating inquiry as retention is. Impeachment is governed by a narrower legal standard--misdemeanor or abuse of office--that (the argument goes) ought not be deemed violated by any judicial decision simply because one disagrees with that decision.

Posted by: Howard Wasserman | Jan 13, 2011 3:40:20 PM

It seems to me that judicial retention exists to give voters the right to disagree with the judicial philosophy of the justices, but that impeachment exists only for the much more narrow category of crimes or other outright malfeasance by the accused. Hence, I think a distinction between the two is valid.

The argument that removing these judges was an improper use of the power is really a disagreement of whether voters should have such power. You can make a strong case that they should not. But if the power exists, it's hard to see how disagreement with judicial philosophy would not be a legitimate basis for voting against retention, even if it is not a basis for impeachment.

Posted by: Anon | Jan 13, 2011 2:48:02 PM

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