Iowa judges are under attack for unpopular rulings that have permitted gay marriage in their state. Unhappy about the rulings, and displeased that so few could overturn the will of the people, activists are looking to check the power of the judges by way of the ballot box. From the Wall Street Journal
[T]his year, conservatives in Iowa are waging a campaign to vote out of office three supreme court judges, who joined a ruling last year that Iowa’s law barring the recognition of same-sex marriage is unconstitutional.
This isn’t the first time I’ve noted the action of one piece of our political “family” (executive, legislative, and judicial) acting against another to check its power. Our constitution was written in such a way as to disperse power and spread it out, limiting the ability of any one group to tyrannize another. In this case, we see the people, the legislative function by which laws are usually made, acting to check the power of the judiciary.
Judges are intended to be independent so as to be free from political pressure. This is to enable them to make decisions that are based solidly in the law and the constitution and to act as a restraint against the power of the majority to protect minorities. However, even this power can be checked. Even when Supreme Court of the United States finds that a law of Congress is misbegotten and unconstitutional, the right to amend the constitution, however high that bar has been set, is still available .
On the state level, because justices are often selected by the executive, they usually have to stand for a “confirmation” vote periodically in order to retain their office. Usually, because of the low levels of interest in the predominantly mundane work of the courts, few voters follow or even care about confirmation of a judge, and voter turnouts are often low. In Iowa, voter anger is seeing to assuring that changes.
“We need to vote them off the bench to send a message across Iowa that we, the people, still have the power,” said Bob Vander Plaats, a Republican state politician who is leading the campaign. “Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country.”
The effort in Iowa, the Post reports, worries gay rights advocates and legal experts who say it is wrong to punish judges for unpopular decisions. But on the flip side, campaign advocates say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority.
Vander Plaats announced this month the creation of Iowa for Freedom, which has rented office space and hired six full-time staff members, who plan to wage a political campaign replete with mailers, phone calls and door-knocking, according to the Post.
While the judges have not, yet, said anything in their own defense, this does raise the question of independence of the judiciary. Can a judiciary that must cater to the winds of political whim ever be completely, to say nothing of partially, independent and objective sufficient to provide a fair trial? How can a judge provide a fair trial when he, or she, knows that the parties before them may, or likely will, work to support or oppose their next election? The result would be that the politically and financially powerful will end up winning their cases, while minorities and poor will lose.
On the other hand, there must be some check against the power of the judiciary to set policy from the bench. If the judiciary, by one decision, can change a law established by the will of the people, what does it matter that the people have spoken or that the legislature has acted?
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