Friday, April 22, 2011

Appointing judges doesn't stop political shenanigans

The Wisconsin State Journal editorially expressed growing discomfort with Wisconsin's elected judiciary which it feels does little to insulate judges from partisan politics, a scenario played out in recent state supreme court soap

The newspaper is right to voice concerns about judicial independence and freedom from partisan politics but abandoning electing judges won't necessarily solve the problem.  If you need proof, let's look at Iowa where judges from the local level to the supreme court are nominated and appointed but face retention elections where voters periodically decide whether to keep a particular judge in office.

After the Iowa Supreme Court ruled same sex marriages were protected by the state constitution three of the seven justices lost retention votes.  While their supporters cried foul that judicial independence was being attacked and outside groups were influencing the election the process nonetheless was followed according to law.  In short, like it or not, Iowa voters had the chance to express their oversight over the court.

Waiting for the next retention vote, however, isn't enough for some Iowa Republican legislators, five of whom have introduced impeachment bills against the other four justices who have yet to come up for their retention votes.

The four resolutions — one for each justice — argue Chief Justice Mark Cady, and justices David Wiggins, Daryl Hecht and Brent Appel, performed a function solely reserved for the legislature in making the ruling.  The court’s decision violated the state’s constitutional separation of powers, and created social disorder and unrest, the resolution said.

Not all Republicans are willing to go that far.  The resolution will move on to the House Judiciary Committee, where its chances of advancing are unlikely, said its chairman Rep. Rich Anderson, R-Clarinda.

The justices’ actions in issuing a ruling that in effect legalized same-sex marriage do not meet the standard for impeachment spelled out in the Iowa Constitution: misdemeanor or malfeasance in office, Anderson said. He believes the majority of House Republicans agree with him and that it’s unlikely that the resolutions will go anywhere.

Anderson is a lawyer who initially applied to fill one of the three seats left open after voters in November ousted three justices but later withdrew his name.
“Rendering an opinion or resolving a dispute, which is what judges and justices are charged with doing, that is not misconduct or wrongful or unlawful,” Anderson said. “As much as the sponsors of the resolution disagree with the opinion, I don’t think the legal standard is met.”

Anderson's assessment mixes Iowa law with Iowa common sense.  If the voters don't like the other for justices, they can give them the boot at the next election.

This process, however, is far from immune from politics.  Outgoing Gov. Chet Culver, a Democrat, could have appointed three replacements before he left office but yielded to calls that he allow his Republican successor, Terry Branstand, to make the appointments. 

In my view that gives a governor too much power and makes it easier to stockpile a court with partisan jurists.  In other words, six of one, a half dozen of another.

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