THIS is Why Judges Shouldn’t be Elected

Several months ago, the Indiana Supreme Court had to decide a case involving homeowners who shot at police who were entering their home. It turned out that the entry was in error and the homeowners were acting in what they said was self-defense; nevertheless, the Court ruled that the use of weapons to repel the police entry was improper. [SEE BELOW FOR CORRECTED DESCRIPTION OF WHAT HAPPENED.]

You probably remember the ensuing uproar. Gun rights and “your home is your castle” purists were outraged, the legislature waded in with legislation to overturn the ruling, and a gnashing of teeth was heard throughout the land.

Now, opinionated snark that I am, I really didn’t have, as they say, a dog in that fight. I could see the logic of the reasoning that generated the opinion, and I could also understand the blowback. But here’s the thing. Judge David, who authored the decision, is up for retention this election, and the Tea Partiers are out for his blood.

There’s a reason the Founding Fathers made federal judgeships appointive rather than elective. The idea was that legislators and members of the Executive branch would have reason to respond to public sentiment–to what the Founders called “the passions of the majority.” The checks and balances of the government they were constructing needed a mechanism focused upon the rule of law–judges whose duty was to the Constitution, not the electorate. Shielding judges from electoral pressures was meant to insure that they would decide cases based upon their reading of the applicable law, rather than the electoral consequences of any particular decision.

The decision to insulate the judiciary was certainly not a guarantee that every decision would be correct. That wasn’t the point. The idea was that–freed of the need to pander to popular opinion–judges would produce decisions that were intellectually honest, that reflected their best reading of the case and the law. The judicial branch would thus act as a check on the majoritarianism of the other two branches.

When the states established their own courts, however, they didn’t always follow the federal model.

When judges are on the ballot, bad things happen. They have to raise money to run for office, and that money often comes from people who have business before the courts. (In West Virginia, a judge who had received $3 million dollars from the owner of a coal mine refused to recuse himself in a case against that owner–only when the Supreme Court stepped in did he step down.) They have to be wary of interest groups that may mobilize to defeat them if they rule in ways inimical to the desires of those groups. (In Iowa, right-wing Christian organizations were able to defeat two state Supreme Court Justices who had ruled that the Iowa Constitution required recognition of same-sex marriage.)

Even in “semi” elections like Indiana’s, where all that appears on the ballot is a retention question, asking voters to say yea or nay to the continued service of a judge makes members of the judiciary vulnerable to small but passionate interest groups like the Tea Party that’s gunning for Judge David. (No pun intended.)

Most voters have no idea what the judges have or haven’t done, whether they are competent or not, whether they are hard-working or lazy. A significant number don’t even vote on retention questions. Because that’s the case, small numbers of zealots can mount successful campaigns to defeat a judge they dislike. Once that happens in a state, even a couple of times, the result can be a judiciary too timid to rule against public opinion in controversial cases, no matter what justice and the law require.

That isn’t the system the Founders established, and it isn’t a system capable of upholding the rule of law against the passions of the mob.

NOTE: Here is Jerry Torr’s message.