Prejudging the judges
CONSERVATIVES have a new cause to rally the faithful at the polls in this week's national election: those scary activist judges. Constitutional amendments are on the ballot in six states that would curb judicial authority in novel and dangerous ways. Wise voters will resist the hyperbole about judges run amok. The nation's founders held high the principle of an independent judiciary, and that should not be undermined by the political whims of the moment.
In Colorado, a ballot proposal would impose 10-year term limits on appellate judges, even though judges in that state already face retention elections every 10 years. The term limits would be retroactive, so some of the state's top judges could be summarily replaced. In Oregon, an initiative provides for the election of top judges by district instead of statewide, to diminish the influence of Portland's liberal voters. In North Dakota,a proposal would severely curtail the discretion judges have in settling custody disputes.
The most sweeping proposal is in South Dakota, where a constitutional amendment would strip judges of personal immunity for their decisions. Dubbed Jail4Judges by its own proponents, this measure would establish a special grand jury to investigate citizen complaints over any court ruling, from a divorce case to a civil rights issue. Judges could be fined, disbarred, stripped of their pensions, even jailed. The amendment explicitly instructs jurors on the review panel to tilt in favor of the aggrieved citizen.
Some court-watchers believe the assault on independent judges has been fueled by a 2002 Supreme Court decision, Republican Party v. White, which found that the First Amendment allows judges running for office to say in advance how they would rule on legal matters. Sandra Day O'Connor, who joined the 5-4 majority, said after she retired that she regretted her vote because it has grossly politicized the judiciary in the 47 states that elect at least some judges. Indeed, multimillion-dollar campaigns, negative ads, and pandering to special interests have all infected judicial races following the decision. The ballot questions are just more of that baleful trend.
In 2004, ballot amendments to ban gay marriage drew out social conservatives who might not otherwise have voted, giving a boost to President Bush's re election effort in key states such as Ohio. It is unclear whether the judicial restraint campaigns will have a similar effect on the mid term elections.
Overall, the ballot attack is a reminder of how fortunate Massachusetts is to have the system of appointed judges that has obtained here for 226 years. "Co-equal branch of government" does not mean the courts should be equally whipsawed by popular passions as campaigns for Congress or the presidency. 