Would the federal courts have provided the necessary backup to end legal discrimination in the U.S. if they had been elected, rather than serving life appointments during the civil rights struggles? It's an interesting question, at least.
It arises today because of a New York Times article about the growing incidence of efforts to defeat state judges who've rendered decisions some voters didn't like. The leading example is in Iowa, where the Supreme Court ruled a ban on same-sex marriage unconstitutional. The religionists intend to punish three of the participating judges up for election this year by ousting them.
Brian S. Brown, executive director of the National Organization for Marriage, which has spent $230,000 on television ads criticizing the Iowa judges, said he understood that removing the three judges would not change the same-sex marriage ruling. (It was a unanimous ruling by the state’s seven justices.) But Mr. Brown said he hoped the judges’ ouster would help prevent similar rulings elsewhere by making judges around the nation aware that their jobs are on the line.
“It sends a powerful message,” he said, “That if justices go outside the bounds of their oaths, if the justices go outside the bounds of the U.S. and state constitutions they’re going to be held accountable.”
Bob Vander Plaats, who made opposition to same-sex marriage a centerpiece of his unsuccessful run for governor in Iowa, is leading the ouster campaign on behalf of the political arm of the American Family Association, a conservative Christian organization based in Tupelo, Miss.
“My bigger fear isn’t about injecting politics into judicial retention elections. The bigger fear is that we don’t hold them in check,” he said, warning that gun and property rights could be at risk.
I can't recall a popular effort that played a major role in Arkansas appellate court elections, though various interest groups over the years have certainly gotten involved. A bankers group went after a Supreme Court justice some years back because he was insufficiently solicitous to their feelings about what the Constitution said about interest limits. A judge's decision on school funding played at least a contributing role in a recent race for Supreme Court. But broad popular efforts have been missing. That undoubtedly will change. And federal court rulings that are enabling more vigorous political speech by judicial candidates could mean that they'll be egging such groups on. I'll say in advance: The federal system is preferable.