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.

“While I don’t always agree with your opinions, I do appreciate that you usually have your facts straight.  Thus I was surpised to read the opening paragraph of your blog today and your description of the case that has caused the uproar over my friend Justice David.
In the Barnes case, there were no shots fired at police – in fact there were not even any weapons involved.  Further, few actually argue that the police entry under the particular facts was in error.  The police were responding to a 9-1-1 call from Barnes’ wife, and when they arrived he was outside the apartment.  After some discussion (argument) with the responding officer, Barnes then entered the apartment and tried to close the door on the officer who was attempting to follow him in.  When the officer forced his way in, Barnes shoved him against the wall.  He was subsequently charged with battery on a police officer (as well he should have been under the circumstances).
As you know I am not a lawyer; however, it seems clear to me that the Court could easily have found that the entry was proper due to the exigent circumstances of the 9-1-1 call, and no one I know disagrees that the result was correct for the particular facts of the case.  The problem is that the majority went out of its way to go much further than it needed to in order to decide this particular case, and bascially threw out the Fourth Amendment in the process by saying that reasonable force is NEVER appropriate, under any circumstance, to prevent an illegal entry by a police officer (perhaps even if he is trying to force his way in to my home to harm or kill me because he mistakenly believes I’m having an affair with his wife).  The ruling basically turned the Fourth Amendment on its head and created a serious conflict between the Court’s ruling and the Castle Doctrine statute that we had passed just a few years earlier.  That’s why legislators felt we had to respond with statutory changes.
Again, I take no issue with your argument about appointed judges, but I was really surprised to read your description of the Barnes case in the first paragraph.  Hope you will take this in the constructive manner that it’s intended.”
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The Best Choice

Yesterday, I received an email plea from a friend’s daughter. She asked that it be widely distributed, and it is worth sharing.

I am writing to you because I am very interested in who is elected as the next Governor for the State of Indiana, and with the election just one week away, I hope I have not waited too long to speak up.

I have been disappointed on a few occasions over the last several months to hear other Democrats talk less than enthusiastically about John Gregg – not because they don’t like him, not because they don’t think he would be a great leader, not because they think he would move Indiana in the wrong direction – but because he’s not liberal enough.

We all know where we live, right?  Of course he’s not liberal – we are in Indiana!!

Debating the qualities of our candidate is not helpful at this stage in the process!  That ship has sailed.  He IS the Democratic nominee for Governor and we need to do ALL WE CAN to make sure he gets elected.

Is he perfect?  I think he IS for Indiana.  We live in a very conservative state and he is a conservative DEMOCRAT.  But more than that, he is an intelligent, articulate leader with experience working WITH Republicans and Democrats to get things accomplished – like balancing budgets, investing in public education, etc.  He understands that governing is not about US versus THEM.  It’s about all of us WORKING TOGETHER to make Indiana a better place.

The alternative, I believe,  is frightening.

Please do not allow democrats to undermine John Gregg as the Democratic nominee for Governor by talking about how you wish he was different.  The stakes are too high.  He is what he is and he is ELECTABLE in Indiana.He’s gaining momentum and has a solid chance to win if we rally behind him and help to make sure Democrats get out and support him.  His campaign will work on convincing the Independents, Undecideds and moderate Republicans that he is the right choice for Indiana – and it’s working!

 Please go forth and elect John Gregg!

Amy’s plea touched a nerve with me. John Gregg is, indeed, more conservative than I am. But I have already voted for him, and I did so with enthusiasm. I have three reasons for that enthusiasm: John Gregg, Vi Simpson and Mike Pence.

John Gregg is not an ideologue. He understands the state, understands the legislative process, and is focused on the things that are really important, like jobs and economic development. Does he have some positions on social issues with which I disagree? Yes. Is he likely to take steps to advance those positions? No. Those policies are clearly not his priorities; furthermore, the Democratic base simply will not support measures to ban same-sex marriage or to outlaw abortion. Let’s be blunt: Gregg will not take positions that are at odds with those held by the majority of his own party. ( I always try to vote for people who owe allegiance to the least dangerous constituencies.)

If you have any doubts about where Gregg’s priorities will lie, just consider Vi Simpson. Gregg chose Vi to be the candidate for Lieutenant Governor. She is one of the smartest, most principled people serving in the Senate. A true culture warrior would not have chosen Vi as a running mate–and the fact that Gregg did select her was a clear message that we can trust him to avoid the divisive social issues that motivate and consume today’s Republican candidates.

And then there’s the best reason of all to vote for John Gregg.

Mike Pence.

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Ballard Catches Mourdock-itis

The generally-held impression of Mayor Greg Ballard has been that he’s a nice guy who’s just in over his head–way over in many respects. Lately, however, he’s been doing things to change that impression–he’s evidently learning fast how not to be a nice guy. Some of this newly-found petulance and partisanship has emerged since Ryan Vaughn–he of the parking meter fiasco–became Chief of Staff, but the buck–as Harry Truman used to say–stops at the Mayor’s own desk.

When the Democrats won control of the Council, new Council President Maggie Lewis was quick to reach out and invite co-operation. When Councilor Brian Mahern held up the Mayor’s TIF proposal, Democrats Vop Osili and Joe Simpson worked to end the impasse. Given the parties’ inevitable differences in priorities, these early signs of conciliation pointed to emergence of an occasionally tense but generally workable accommodation.

Then came the budget. As the Indianapolis Star reported

Facing a deadline to approve or veto the nearly $1.1 billion city/county budget for 2013, Ballard signed it. But his changes, without further negotiations and a quick agreement with the council, would withhold nearly $32 million in income-tax money from Marion County offices and agencies.

That money helps pay to run the courts, keep the jails open, run elections, prosecute or defend criminals, process crime scenes, investigate deaths and provide other public services such as surveying land and collecting property taxes.

The common denominator of the cuts: they affected only the agencies held by Democrats. The Mayor’s own operation, the city offices that he controls, weren’t cut.

The Mayor justified his use of the line-item veto to cripple Democratic offices with language about fiscal responsibility. But genuine fiscal responsibility would involve shared sacrifices across public agencies. (Sort of reminds me of a husband who tells his wife “we can’t afford that new coat you need because my cable TV bill has to be paid.”) He also voiced disagreement with a proposed assessment of the CIB. If he had a genuine problem with that assessment, however, he could have negotiated an equitable resolution with the Council.

Instead, Ballard presented the Council with a fait accompli. He waited until the last minute to deliver a budget that will cripple a number of critical services–for no reason other than those services are being delivered by the opposing party. In Ballard’s cynical budget, public safety takes a back seat to partisanship. It’s his way or the highway.

Shades of Richard Mourdock.

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No Snark Today

Today, the only appropriate sentiment is concern for those in the path of Sandy–and a fervent hope that the increasing number and severity of these atypical weather “events” jolts us out of our complacency and denial about global climate change.

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Questions and Answers

Since Halloween is fast approaching, it seems appropriate to write about something scary. And for scary, little can compare to the Indiana Family Institute’s candidate questionnaire.

It was bad enough looking at the Right to Life questions and Pence and Mourdock’s answers. Both would outlaw abortion with an exception ONLY for the life of the mother. Both support “personhood” legislation that would outlaw most birth control methods.

I thought Right to Life’s questions were scary, but the Indiana Family Institute–which has long supported Pence and which supports him for Governor–has a questionnaire that lays bare a truly terrifying agenda.

Let’s look at their positions on education–if you could still call it “education” after adopting those positions. They want educational choice–defined as “vouchers to send children to any public, private, religious or home school.” (Just ignore that pesky constitution!) They want parents who choose to home school to do so without any new regulations. They want to “redefine” bullying, in order to protect “students who express opposition to the promotion of homosexuality.” (Wouldn’t want to hurt the feelings of those little gay-tormenters they’re raising!) And they want “Academic liberty” for teachers who want to “discuss the problems and weaknesses of evolutionary theory.” (i.e., they want their version of religion taught in science classes.)

Anti-gay bigotry, unsurprisingly, permeates the questionnaire. There are references to the “homosexual agenda.” They want candidates to agree to “standardize” business regulations by overturning local ordinances that protect GLBT people against discrimination in education, employment and housing. They want to pass a Constitutional Amendment limiting marriage to heterosexuals. And of course, they want to protect those little schoolyard bullies.

There are also the more general “morality” issues they want to dictate. They want to prohibit casinos, discontinue state support of the Kinsey Institute (evidently, studying sex is just as immoral as engaging in it) and require dancers in strip clubs to remain 6 feet away from customers at all times.

There’s more, but you get the idea. And next week, there’s a very high probability that we will elect a governor who endorses all of these retrograde positions, and has supported them throughout his entire career in public life. Mike Pence–a governor for the 15th Century!

Now that’s scary!

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