Voters Rejected Politicizing the Courts in the Election

The law, lawyers, and the court.
Nov. 12 2012 1:06 PM

Beating Back the War on Judges

Voters rejected the crusade to politicize the courts.

Amy Klein-Matheny (L) and her wife Jennifer are married by Rev. Peg Esperanza (R) near a stairway in the Polk County Administration Building April 27, 2009 in Des Moines, Iowa.
Amy Klein-Matheny and her wife Jennifer are married in Des Moines, Iowa. After the Iowa Supreme Court declared a legislative ban on same-sex marriage unconstitutional, conservative groups sought to remove justices.

Photo by Scott Olson/Getty Images.

Tucked away in last Tuesday’s national election results was a bona fide mandate, on a scale that presidents can only dream of. Voters across the country rejected a multifront crusade to bully judges and politicize courtrooms. That doesn’t mean, though, that the war against the independent judiciary is over.

The situation looked far graver two years ago. In 2010, in a breakthrough moment, three Iowa Supreme Court justices were swept from the bench after ruling—as part of a unanimous court—that the state constitution protects the rights of same-sex couples to marry. Meanwhile, Supreme Court justices in Alaska, Colorado, and Illinois also faced aggressive efforts to oust them in retention elections, where voters decide whether or not to keep an incumbent judge. The following year, a record-breaking number of bills were filed to impeach or remove judges. Legislators also sought to weaken merit selection, whereby a nonpartisan screening commission provides a governor with a list of potential nominees.

Fueling the campaign against the Iowa justices was nearly a million dollars from conservative out of state groups like the National Organization for Marriage. That’s a lot for a judicial election, and it’s part of an explosion of campaign spending in high court races: State justices and their challengers raised almost $207 million during the last decade, more than double the $83 million raised in the 1990s. Much of this money is raised from parties who then appear before the judges in court.

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The Iowa ouster and the growth in campaign money has made more judges fear that an unpopular decision could trigger retaliation in the next election. That is precisely what the architects of the Iowa campaign were seeking. Campaign chief Bob Vander Plaats called the Iowa 2010 vote, “a strong message for freedom to the Iowa Supreme Court and to the entire nation that activist judges who seek to write their own law won’t be tolerated any longer.”

This fall, new campaigns were mounted to oust justices in Florida, Iowa, and Arizona. Presidential candidate Rick Santorum and Louisiana Gov. Bobby Jindal stumped in Iowa to defeat Justice David Wiggins, one of the other four members of the court who had signed on to the same-sex marriage decision. Measures to water down merit selection went on the ballot in Arizona, Florida, and Missouri. Spending on TV ads hit an all-time high. In Michigan, where ad spending may have exceeded $10 million, the Washington, D.C.-based Judicial Crisis Network spent $1 million attacking Judge Bridget McCormack because she offered to “represent and help free suspected terrorists” at Guantanamo Bay. The Koch brothers’ Americans for Prosperity mailed 250,000 postcards in North Carolina urging voters to call the GOP Supreme Court candidate “and tell him to continue standing up for the rights of taxpayers,” and ran ads in Florida attacking the court for disallowing a ballot measure to reject Obamacare.

The result? Bipartisan backlash. The ballot measures were defeated by enormous margins, exceeding 70 percent in Arizona and Missouri, and by almost two-thirds of Floridians. Iowans voted to retain Justice Wiggins by 8 points, and voters in other states rejected partisan challenges to their high court justices.

Historically speaking, Americans have often been suspicious of political tampering with the courts, with past cycles of discontent with the judiciary fading after a bout of agitation. Still, supporters of courts untethered to campaign donations should go easy on the champagne. The message that the courts aren’t for sale is one “we will likely have to deliver over and over again unless we build a more effective firewall to keep big money and politics away from the judicial branch,” says former Florida state Sen. Alex Villalobos, a Republican. That’s a big task, but what’s clear from this election is that though Americans may be divided 50-50 on many things, they want their judiciary to be nonpartisan.

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

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