Tyranny of the minority

    As we continue to sift the ’10 midterm results, let us not overlook the disgrace that transpired the other night in Iowa.

    Three judges were kicked off the state Supreme Court by conservative voters, for the apparent crime of having participated 19 months ago in the unanimous 7-0 decision that found gay marriage to be fully in sync with the equal-rights language embedded in the Iowa constitution. These judges were targeted by national anti-gay groups in an unprecedented campaign to politicize the judiciary – a branch of government that was designed by the Founding Fathers to have (in the words of Alexander Hamilton) “complete independence” from the passions of the moment.But right-wing activists found a tiny loophole, and drove a Hummer right through it.Iowa, as well as many other states, conduct retention elections; after serving for a number of years, high court judges appear on the ballot so that the electorate can decide whether their service should continue. But ousters have been exceedingly rare, because the traditional bar for removal (corruption, scandal, general incompetence) has been exceedingly high.Until now.Apparently, the new standard of removal is participation in a ruling that ideologues dislike. The ousted Iowa judges were ambushed by a quarter of a million dollars worth of TV ads financed by the National Organization for Marriage and the American Family Association. The targeted trio didn’t raise any money to defend themselves, because they believed – silly them! – that judges should not have to campaign, that the integrity of their jobs hinged on their independence from political mood swings.So they lost their jobs in a midterm election dominated by conservative voters, in essence falling victim to the tyranny of the inflamed public minority. Let this be a lesson to judges in other states, who might be tempted in the future to issue rulings strictly on the basis of their constitutional convictions. Such integrity may be hazardous to their occupational health.U.S. Supreme Court judge Sandra Day O’Connor, the now-retired Reagan appointee, ripped into the new right-wing crusade during a speech earlier this autumn: “Many think that judges are just politicians in robes. (The courts were) the one safe place in our system of government where being right was more important than being popular. This idea is being eroded by the increasing threats to judicial independence around the country.” (Today’s conservatives probably dismiss Sandra Day O’Connor as a flaming lefty.)The unanimous Iowa gay marriage ruling was a model of judicial integrity; it was written by a Republican appointee, and was seconded by the chief justice, also a Republican appointee (and one of the election-night casualties). It was the product of strict constructionist thinking, and it respected legal precedent (two concepts that conservative ideologues supposedly revere).The seven judges looked at the literal language of Section 6 in the state constitution (“All laws of a general nature shall have a uniform operation and shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens”), and reached the obvious conclusion: Not a single word in that passage denied to gay citizens the rights enjoyed by everybody else. Moreover, the state constitution’s Bill of Rights guarantees “equal protection of the law.”But the new generation of judge-hunting ideologues care little about constitutional principles. They care about outcomes. If a ruling offends them, that is deemed to be grounds for removal. Expect more on this front, state by state, in the years ahead. Those who defend traditional judicial independence will have no choice but to push back in the political realm.Alexander Hamilton, in the 78th entry of the Federalist Papers, insisted that “the complete independence of the courts of justice is peculiarly essential,” that the “independent spirit in the judges…must be essential to the faithful performance of so arduous a duty.” But why would today’s conservative ideologues, who profess to revere the Founding Fathers, care a whit about what they actually said? After all, the Founders are dead.

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