Who’s Afraid of Judicial Independence?

This weekend Andrew Cohen echoed retired Supreme Court Justice Sandra Day O’Connor’s recent observations about the mounting attacks on judicial independence. Although commentators inside the beltway tend to focus on threats to the federal judiciary, Cohen’s Washington Post article points out that the real threats to judicial independence this electoral cycle are coming from the states.

Cohen describes the measures as “boldly and brashly designed to scare judges away from making tough and sometimes unpopular decisions.” And with good reason. Proponents of Amendment E in South Dakota are trying to toss out the longstanding principle of judicial immunity and allow judges to be sued for making unpopular decisions. In Colorado, backers of Amendment 40 want to remove five of Colorado’s Supreme Court justices and seven of its 19 appellate court judges in order to impose a ten year judicial term limit. They argue that “there’s a danger of public officials curdling like old milk if left around too long.” And supporters of CI-98 want Montanans to be able to recall state court judges at any time for any reason “notwithstanding good faith attempts to perform the duties of the office.”

These three measures are not the only attacks on judicial independence percolating at the state level these days. In Legal Times this week, Thomas J. Moyer and Bert Brandenburg observe that judicial elections are increasingly demanding the kind of money and campaign promises traditionally confined to nonjudicial offices. They worry about the effect this politicization of the judiciary will have, saying that "at stake is nothing less than the fairness, impartiality, and independence of courts in the 38 states that use elections, in some form or fashion, to select or retain their high court judges." And in Texas, Law.com reports, Republicans have mounted a veritable religious test against one judicial nominee, who - over factual objections from the candidate - a local newspaper has labeled an atheist. It’s no wonder that Cohen calls this election season “open season on judges.”

Common sense might lead you to believe that thwarting “vehemently anti-judiciary forces [who] want to diminish the authority of the courts and destroy the independence of the judiciary” would be a bi-partisan issue. Because having fair-minded, independent judges is better for everyone, right? Apparently not. Voices on the right responded to Cohen’s piece by accusing him of having “contempt for the democratic process.” Apparently, they think it is OK for judges to be punished, even removed, for issuing unpopular decisions.

Perhaps these guys need a little civics refresher course? Oh, yeah. Never mind. We forgot that they really don’t believe the judiciary should be a co-equal branch of government. Rather, as Justice Alito once wrote in his now-infamous application for job in the Reagan administration, they believe in “the supremacy of the elected branches”--with all the trouble that spells for checks and balances and the rights of political minorities.