Document Type

Article

Publication Date

2011

Abstract

Although 89% of state judges (appellate and general-jurisdiction trial judges) face some type of election, judicial elections are rarely thought of even by academics interested in elections. Iowa’s 2010 election, in which three Justices were defeated, is one of the most significant judicial elections ever. The Justices lost their seats because they participated in a unanimous 2009 decision upholding gay marriage. That decision stirred intense opposition among “social conservatives”, in Iowa a substantial proportion of the population and actively led by more than 100 ministers.

That active opposition was one of eight elements that created a perfect storm against the Justices:

  1. The decision overturned a statute;
  2. the Justices faced a “retention” election in which there are no opposing candidates, only the question whether to keep or retire the incumbent in office;
  3. the opposition was aided by out-of-state funding support (over $1,000,000) secured by some 2012 Republican presidential candidates seeking to build support in Iowa;
  4. although the Justices drew important support which raised about $400,000 (all in-state), the support’s effectiveness is fairly summarized by one fact: no funds were available before October;
  5. the only out-of-state support was one talk by Justice Sandra Day O’Connor;
  6. by chance, Iowa’s 2010 election included no active contest other than this one;
  7. the opposition got full-time and able leadership from a politician with established statewide ambitions; and
  8. for incumbents, 2010 was not a favorable year. Even for the usually quiet domain of judicial elections, there was organized opposition to Justices in six States - only twice before had there been organized opposition in even two States.

Despite my deep disagreement with those who opposed the Iowa Justices, I respect their exemplary honesty. One of the most notable aspects of the Iowa event is this: the opposition disagreed with one decision that their Court had made, their disagreement was the undeniably clear basis of their opposition, and they took advantage of an opportunity to make the Justices account for what they had done. Decades of experience show that when there is organized opposition to a judge, it is rarely honest: e.g. last year, Illinois’s Justice Kilbride was opposed by pro-business interests unhappy with his voting to overturn a statute capping medical malpractice damages; but the opposition’s TV ads focused on his record in criminal cases to portray him as “soft on crime.” The article considers the impact of the Iowa election. Also, the Iowa event raises a fundamental question: when judges face any type of election, what should they be “accountable” for?

Publication Citation

46 Court Rev. 118-128 (2011).