Judges need to join the fight to save the courts.

The law, lawyers, and the court.
July 28 2006 4:13 PM

Bench-Clearing Brawl

Judges need to join the fight to save the courts.

A lot of state judges will be staying up election night this November, and not just because many of them will be on the ballot. One of the most overlooked political stories of 2006 is a cluster of state ballot initiatives designed to hobble courts. Their backers seek the aura of Mr. Smith Goes to Washington. But the measures look more like On the Waterfront: They point toward a political intimidation racket benefiting special interests that want courts to deliver results, not justice.

In Colorado, there's a push for retroactive term limits for appellate judges. The measure would write pink slips for 12 judges in the near future and clear off most of the Supreme Court in just a couple of years. In Montana, where every judge already runs for office, Constitutional Initiative 98 would create a new layer of recall elections to oust judges over specific decisions. An Oregon measure seeks to throw out justices from Portland by creating geographical districts for the Supreme Court. And in South Dakota, a "J.A.I.L. 4 Judges" initiative would amend the state constitution to create a fourth branch of government: a special grand jury to sue judges and others for their decisions.

Crusades against independent courts are sprouting like mushrooms. It's time for judges and everyone else who cares about judicial independence to stop hoping that dignified silence will win the day. Enemies of impartial justice are energized and organized. But judges have the tools they need to fight back and win—if they're willing to roll up their robes and explain in plain language why interest groups must not take America's system of fair and impartial courts hostage.

The good news is that as slogans go, the call for common people to vote to rein in rogue courts rings a little phony. Every judge in these states—indeed, 87 percent of judges nationwide—regularly stands for election. Jurists in Montana can already be recalled for incompetence or unfitness. And judges everywhere can be impeached for misconduct.

The problem for anti-court activists is that Americans can't be trusted to fire judges. That's why these self-styled Jimmy Stewarts quickly move to divisive wedge issues. To rile up voters, they demand vengeance for a familiar litany of hot-button decisions on cases involving immigration, school vouchers, zoning laws, criminal sentences, and gun control. Underneath this populist clothing, there's an awful lot of back-room politics.

A closer look at the backers of these measures further belies their grass-roots claims. The Montana measure is being pushed by an Illinois-based group, Americans for Limited Government, which collects signatures for property-rights and tax measures around the country. The effort to cut up Oregon's courts is being bankrolled by a former Oregonian who now resides in Nevada. (He's also the second-biggest donor to the "J.A.I.L. 4 Judges" campaign in South Dakota.)

One striking footnote is how the U.S. Supreme Court's 2005 Kelo decision—upholding government power to condemn private property for redevelopment—continues to ripple through the body politic. Kelo hasn't yet attained the pop-icon status of Miranda warnings, but it is still remarkably unpopular, and it is fanning populist-libertarian perceptions of judicial elitism nationwide. Kelo critics are exploiting this irritation by putting property-rights measures on the ballot in California and other states this fall. This has led to accusations of a shady bait-and-switch in Montana, where voters were asked to provide an "extra" signature for a property-rights initiative—and wound up signing up for the judicial recall measure instead.

What can friends of the courts do in the face of angry radicals masquerading as populists? They must start by listening. Buried beneath the angry bluster are real values and concerns. Americans want their courts to be independent and accountable. For years, too many judges, bar leaders, and good-government types have fretted that judicial accountability is too mushy and complicated to defend in a public debate. Courts are just different, they mumble, and then retreat to the Federalist Papers and sermons about judicial independence.

In the meantime, court-bashers have been busily framing their anger in accountability terms that resonate with American values. That's why wishing away the accountability debate is a huge mistake. Independent courts have always coexisted with American populism, and citizens of all stripes are right to insist that courts must be accountable. The judicial establishment can't afford to treat ordinary Americans like ignorant cousins at the family picnic. Judges are the sleeping giants in the national debate over the courts, and if they don't wake up soon, they'll find themselves lashed down.

It's also time for courts and those who care about them to embrace the notion of judicial accountability and define it properly instead of letting court-bashers corrupt it beyond recognition. Friends of the court need to remind the public that courts are already accountable and proud of it—accountable to the law and the Constitution, not to politicians, special interests, and rage campaigns. It's not an overstatement to say that the road to independence runs through accountability.

In the longer term, it's time to invest more time, money, and energy in educating Americans about how courts work. Americans who understand the role of precedent, appeals, and constitutional review are most likely to reject attempts to weaken the courts. Indeed, knowledge often trumps ideology. The special role that courts play in a democracy reminds people of core constitutional values that they treasure more than their anger over the debate of the day.

All of this was proven last year during the Schiavo mess: Americans may not be glued to C-SPAN, but when court-meddling hit CNN, they gagged.

There are some encouraging signs. After years of neglect, a growing number of states are trying to improve their civics curricula. In the wake of the Schiavo debacle, more courts, bars, and civic groups are creating programs to educate the public. Last year the American Bar Association created a commission, co-chaired by Justice Sandra Day O'Connor and former U.S. Sen. Bill Bradley, to boost education on the separation of powers and the role of independent and accountable courts. There's still a lot of ground to make up: Modern opponents of the courts have been at it for a while, and they're not going away soon. Education is not a glamorous response. But if it's going to succeed, it needs to go beyond Law Day proclamations and school assemblies. The courts that protect our rights need their own permanent campaign to counter the war rooms arrayed against them.

Bert Brandenburg is the executive director of the Justice at Stake, a nonpartisan national organization.