Legislators in 24 states proposed legislation during
the past legislative session (2011–2012) that would enable governors to replace
competent state judges, a power that would, in practice, result in more
conservative replacements in states across the country. Legislators in
Missouri, Florida, and Arizona managed to place referendums on this November’s
ballot that if approved by voters would severely restrict judicial independence
and belie the promise of fairness before the law. State judges that are expected
to protect citizens’ rights will become more and more aligned with conservative
and corporate interests.
The reason: Conservatives are behind the majority of
these efforts. After failing to achieve their preferred policy outcomes though
the legislative process or the ballot box, these individuals are now turning
their sights on the courts. Not only is much at stake for progressive policy
causes, but even worse, the health of our democracy and the public’s faith in
our system of justice are at risk, too.
Judges, in their role interpreting laws and state
constitutions, are meant to remain above politics, protected from shifting
political winds and the tyranny of a majority swayed by current events. This is
why federal judges have lifetime appointments—to insulate them from the whims
of politics. Speaking directly to this point, U.S. Supreme Court Chief Justice
John G. Roberts said at his confirmation hearing that “judges are not
politicians.”
Yet as important as they are, state judges are much
less insulated from politics than federal judges in many states. Indeed, judges
in 39 states are seated on the bench through elections just as partisan (and
paid for by special interests) as those for governor and state legislators.
This might not have been a serious problem in the past but it is today,
following the huge influx of conservative money to judicial election campaigns
in the last several years.
Consider a few recent examples. In 2010 Iowa voters
threw out three justices who upheld same-sex marriage (and conservatives will
likely attempt to throw out a fourth this year) after conservative groups
poured thousands of dollars into the state. And in 2011 conservative advocacy
groups spent the most money ever in a Wisconsin Supreme Court election as a
referendum on Gov. Scott Walker’s antiunion policies, pouring more than $3.5
million into the campaign to secure the state chief justice’s seat for
conservatives.
It is important for anyone who cares about the
health of our democracy and the ability of Americans to vindicate their
constitutional rights to watch the outcome of these ballot measures. If any of
these three pass, conservatives in the other states will be emboldened. With
the knowledge that a referendum passed in one state and it may pass in another,
legislators in the 21 other states where legislation was introduced will
increase pressure to pass their own legislation, and legislators in any of the
26 others may introduce new bills. Judges in every state may face increased
pressure to lean conservative in their judicial outcomes, affecting all
Americans, due to anticipated election assaults by conservatives.
It is clear the conservative movement across the
nation will be watching the results of these referendums and planning for 2014.
It is important for progressives to be watching as well. Below are summaries of
the history behind each legislative push and the potentially adverse outcomes
if the voters in these states approve the measures.
Missouri
Missouri currently selects supreme court justices
through a merit selection process that aims to achieve a strong, independent
judiciary. The Appellate Judicial Commission composed of the chief justice of
the Missouri Supreme Court, three members of the bar association, and three
citizens who serve four-year terms selects several judicial nominees to send to
the governor, who then chooses one nominee to become a judge. After each term
in office, Missourians vote to retain or dismiss the judge.
The merit selection process ensures that the
governor appoints only qualified, apolitical judges, as the committee will only
nominate qualified, apolitical judicial candidates due to its divorce from
politics. Yes, politics enters the equation once the judge faces the voters,
but because of the merit-based appointment process, the initial appointment of
the judge is based on a nonpartisan review of a nominee’s competency,
integrity, and temperament.
The conservative-controlled legislature is trying to
change the makeup of the commission to give the governor more control over the
candidates it selects. S.J.R. 51, a referendum supported in the legislature by
102 Republicans and 1 Democrat, would replace the chief justice with a
nonvoting retired justice, and would allow the governor to appoint a fourth,
non-attorney member as the tie-breaking vote. This would enable the governor to
bring his or her own political philosophies directly to bear on the appointment
process before the voters ever get a say on the matter.
Making the Appellate Judicial Commission more
attuned to the winds of politics would be severely detrimental to judicial
independence. If the four appointed commissioners are all of the same party,
the most politically connected individuals will become judges at the expense of
better qualified, more independent candidates. Missouri Bar President Lynn
Vogel has stated that the plan benefits people who have “given enough money to
the governor.” Justice William Price has announced that he will retire on
August 1 to ensure his successor is chosen “by the same … nonpartisan merit
plan that has served [Missouri] so well for the past 70 years.” These and other
astute observers recognize that if the referendum passes, party loyalty and
adherence to ideology will become more important than qualifications.
This shift will become apparent immediately. Rather
than allowing the current appointees to finish their terms, S.J.R. 51 allows
the next governor to appoint all four members to the commission at once in
January 2013 and replace two of them in January 2015, ensuring the governor’s
influence for at least six years.
Unlike other legislation limiting judges’
independence, S.J.R. 51 was not the result of a judicial controversy. A former
Missouri Republican Party chairman testified in committee that state judges
“haven’t done anything to the people that outrages them.” The Missouri court
has not legalized same-sex marriage or declared the death penalty
unconstitutional. Instead, S.J.R. 51 is the culmination of half a decade’s worth
of work on the part of conservatives dismayed that the court will not bend to
conservative ideology on issues such as medical malpractice and tort reform.
In 2007 Republican Gov. Matt Blunt stirred
controversy, claiming that the nominating commission broke the law by meeting
without public scrutiny, as state supreme court rules require, in order to
maintain political neutrality when it chose its candidates. Many believe that
Gov. Blunt was more distressed that the three nominees were not as conservative
as he would have liked, rather than about the process by which they were
chosen.
Even though Gov. Blunt lost reelection in 2008 to
Democrat Jay Nixon, conservatives still worked to change the state’s judicial
nominating procedures. In 2010 and 2011 individuals attempted to get an
initiative on the ballot that would have scrapped the Appellate Judicial
Commission entirely, but they failed to submit a sufficient number of
signatures to the ballot each time.
Although the current proposal seems to be the result
of Republicans looking for some accomplishment to tout in an election
year—Republicans in both chambers of the Missouri Assembly after the 2010
election wanted to point to some success as their other major accomplishments
had been stymied by Gov. Nixon—it is heavily supported by conservative business
interests. Better Courts for Missouri, a coalition of conservative interest
groups that includes the St. Louis Tea Party and Americans for Prosperity, are
heavily pushing for S.J.R. 51’s passage. It has been placed on the November
ballot and is expected to be contested closely by people on all sides.
While Republicans may, in the short term, be handing
over the appointment process to a Democrat with passage of this ballot measure,
Republicans in the state legislature really want to do something that looks
like a win on its face in terms of fixing the process, even if it might result
in a short-term loss in terms of the judges selected.
Florida
Over the course of several years, the Florida
Supreme Court has upset conservatives by ruling against their interests. In
2006 the court declared school vouchers illegal under the Florida Constitution,
and in 2010 it prevented several legislatively referred ballot measures from
appearing on the ballot due to legal improprieties. The measures would have set
limits on property tax increases, prevented the Affordable Care Act from being
implemented, and curtailed political considerations when crafting district
lines, though this last referendum was really intended to be used as part of a
political strategy to confuse voters. Although the referendums were removed
from the ballot for using language that would intentionally mislead voters,
conservatives interpreted this as “judicial activism.”
In response, the Florida Legislature placed H.J.R.
7111 on the November ballot with the votes of 104 Republicans and zero
Democrats. This referendum makes two major changes to the state supreme court.
The first modification changes how justices are selected. Although the governor
must still appoint a judge from the nominations of the Supreme Court Judicial
Nominating Commission, similar to Missouri’s plan, this referendum amends the
state constitution to require Senate confirmation of the governor’s selection.
If the Senate rejects the selected candidate, the commission reconvenes to
choose new nominees, with the condition that they “may not re-nominate” the
rejected candidate.
This change to the judicial nominating procedure is
even worse than the change in Missouri. While the Missouri referendum may still
allow the commission to nominate qualified candidates without regard to
politics, Florida’s referendum ensures that politics will always play a role in
nominations by giving the Senate a veto. The Florida commission may nominate
any number of qualified candidates, but only those with political views the
Senate majority agrees with will be confirmed. Furthermore, the Senate may
reject every nominee until the commission and governor nominate a specific
candidate with close political ties to the party in power.
The second modification in H.J.R. 7111 is to allow
the legislature to repeal a rule of the court with a simple majority vote in
both chambers, rather than the two-thirds supermajority the state’s
constitution currently requires. This easily allows the legislature to
influence court proceedings and retaliate against judges for deciding cases in
the interest of justice, rather than in the interest of the current
conservative ideology of the majority of the legislature’s members today.
To support H.J.R. 7111 in the media, conservatives
created an interest group with ties to “the Federalist Society, the Heritage
Foundation, the Pacific Research Institute, the Center for Individual Freedom,
the Manhattan Institute, ALEC [the American Legislative Exchange Counsel], the
Competitive Enterprise Institute, and the Washington Legal Foundation.” The
organization, called Restore Justice 2012, is working to alert voters of the
initiative. As with Better Courts for Missouri, Restore Justice 2012 is a
nonprofit corporation, so it is impossible to track its funders.
These affiliated organizations engaged with Restore
Justice 2012 have also engaged in activities to limit the ability of government
to support middle-class Americans. One case in point: ALEC is a coalition of
legislators and corporate interests that have advocated for repealing
minimum-wage laws, engaging in voter suppression, and pushing legislation to
weaken access to justice. H.J.R. 7111 would be a boon to ALEC’s corporations,
as conservative laws may only be enforced or enjoined by the courts. It is
clear that these conservative interest groups want this referendum passed.
While Florida’s H.J.R. 7111 makes dangerous changes
to the state judiciary selection process, the originally introduced version was
even more extreme and would have produced a windfall for conservatives. It
would have separated the Florida Supreme Court into two different divisions—one
for dealing with civil matters and another for criminal, each with five
members. The current court has seven members, meaning that incumbent Republican
Gov. Rick Scott would have been able to appoint three new justices to the
court.
Furthermore, the current justices would have been
split into the two divisions based on their seniority, meaning that the three
justices appointed by a Democratic governor would have gone to the criminal
division while the four Republican-appointed justices would have gone to the
civil division. Republican appointees would have controlled the civil branch,
deciding challenges to constitutional amendments and potentially rewarding
business interests who have worked across the nation to install pro-business
judges on state courts.
Fortunately, this plan failed to garner the required
number of votes in the Senate to place it on the ballot, forcing its sponsors
to trim the legislation down to its current form. It is likely, though, that if
voters approve H.J.R. 7111, the conservative legislative leaders will try once
again to place the original court-packing plan on the ballot.
Indeed, conservatives are now trying by yet another
means to create three new vacancies on the Florida Supreme Court for Gov.
Scott. The Southeastern Legal Foundation, with help from the Koch brothers’
Americans for Prosperity, filed a frivolous lawsuit to remove three justices
from the court. They claim the justices broke the law by using a court notary
to notarize their retention election documents. The state attorney charged by
the governor with investigating the same incident declined to prosecute, explaining
that “it is well established that the law does not concern itself with
trifles.” The civil case is still pending.
Arizona
On several occasions in the past election cycle, the
Arizona judiciary has frustrated the conservative legislature and Republican
Gov. Jan Brewer from attempting to consolidate power in the hands of
Republicans. First, the Arizona Supreme Court declared unconstitutional a law
that would change Tucson’s elections to enable Republicans to win more seats on
the city council. Later, the Arizona Supreme Court reinstated the independent
chair of Arizona’s Independent Redistricting Commission, Colleen Mathis, after
Gov. Brewer removed her for creating a “flawed product” that Republicans
disliked. Gov. Brewer and her party objected to the final layout of the state’s
congressional districts, arguing that it allowed Democrats to win more seats
than they deserve, The Arizona Supreme Court disagreed.
Adding to Republican ire, the state high court also
allowed the recall of Senate President Russell Pearce—author of Arizona’s
controversial immigration law—to continue, which resulted in his removal from
office. It is no surprise that conservatives in the legislature would wish to
bring the judiciary under political control. Proposition 115 will be on the
ballot in November to do just that.
Prop 115, passed by 61 Republicans and 8 Democrats,
makes changes to the Commission on Appellate Court Appointments, which performs
a role similar to those in the two states above. The 16-member commission is
chaired by the chief justice of the Arizona Supreme Court, includes 10 non-attorney
members who are appointed by the governor in staggered terms and confirmed by
the Senate, and has five attorney members appointed by the state bar and
confirmed by the Senate, all with four-year terms (excluding the chief
justice). Prop 115 modifies the commission’s makeup to allow the state bar to
appoint only one attorney member while the governor appoints the other four
attorney members without input from the bar. This would give each governor at
least seven political appointees, or nearly half of the commission, instead of
only five every four years.
The referendum also changes the number of candidates
the commission puts forward from three to eight and removes the limitation that
not all candidates may be of the same political party. In other words, while
currently the commission may put forward the names of two Republicans and one
Democrat but not three Republicans, if Prop 115 passes the commission may put
forward the names of eight Republicans and zero Democrats. Not only does the
increase in candidates allow the governor to choose a less qualified nominee,
but removing the party division requirement removes all semblances of
bipartisanship and places politics above qualifications. Without requiring the
commission to choose a bipartisan group of nominees, it is likely the number of
applications will drop significantly.
Finally, the referendum allows the state’s House and
Senate Judiciary Committees to “take testimony on the justices and judges who
are up for retention” up to 60 days before the retention election. The state
constitution already creates a Commission on Judicial Performance Review that
provides information on whether each judge meets performance standards, including
attributes such as legal ability and integrity, based on comments from other
judges, attorneys, and the public. Prop 115 allows the judiciary committees to
take testimony solely to create an opportunity for senators and representatives
to publically ridicule judges who are up for retention and hopefully get their
comments in the media.
The upshot: Retention elections will become more
politicized, judges will adjudicate claims by ordinary Arizonans with these
committee “dog and pony shows” in mind, and the judiciary will be further
politicized.
Because Prop 115 is solely a power play by
conservative legislators enraged that the state supreme court followed the law
in several instances, two outside interest groups have gotten involved in the
referendum. The first interest group is the Center for Arizona Policy, a
self-described “conservative, pro-family” lobbying organization, which has
previously supported legislation to prohibit same-sex marriage in the Arizona
and U.S. constitutions, to use government funds to support religious schools,
and to inhibit a woman’s right to choose. The second is Citizens for Clean
Courts, a campaign committee started by former Maricopa County Attorney Andrew
Thomas to exact retribution against the court for disbarring him after
committing gross violations of professional conduct. In this case big business
is not getting involved because it looks like this measure may pass even
without its help.
Conclusion
Forecasting the outcomes of these referendums based
on past ballot measures would be cumbersome and imprecise. Of recent
propositions similar to those up this year, only Nevada (2010) and South Dakota
(2004) have seen similar measures, and voters in both states rejected a switch
to merit selection in favor of elections for their judges.
This might imply that voters prefer democratically
accountable judges, though it might also simply show a status quo bias that
these three 2012 referendums also face. Each state’s history is not helpful
either. Missouri and Arizona have not had similar ballot propositions since
1940 and 1974, respectively, when voters instituted those states’ current
plans. Florida citizens voted to increase the number of nominees recommended to
the governor by the Judicial Nominating Commission from three to six people in
1996, but every circuit and every county voted to continue to elect, rather
than allow the governor to appoint, local judges in 2000.
Despite the difficulty in forecasting their
outcomes, the implications are clear: As a result of state judicial elections,
a number of state supreme courts already have conservative majorities that rule
for business interests over ordinary Americans. After spending millions of
dollars to elect pro-business justices in Ohio, the asbestos industry received
a windfall ruling that upheld retroactive anti-consumer legislation that had
previously been held unconstitutional twice. In another example business
interests have announced plans to raise unlimited sums of money to support the
reelection of a North Carolina justice this year to show their appreciation for
a ruling to prohibit individuals from suing over illegal predatory lending
practices.
Business interests and conservative organizations
are fighting to pass these three referendums in order to get state judiciaries
that align with their interests. Passing any or all referendums would encourage
conservatives in at least the 21 other states highlighted in the map above to
fight harder for similar measures in the next legislative session. States that
did not previously see judicial reform bills may well see them in the near
future.
Conservatives will learn how extreme a referendum
can be in order to make future passage more likely. State judiciaries across
the nation will face increasing threats to their independence buoyed by the
knowledge that such a challenge may succeed, leaving them more exposed to
political winds in the wake of successful referendums.
Progressives must watch the outcomes in these
referendums and learn to counter measures in the future. In 2014, 2016, and
beyond, conservatives will continue to bring measures forward, and progressives
must fight back with their own initiatives to ensure America’s courts are not
rubber stamps for right-wing interests.
About the author: Andrew Blotky is the Director of
Legal Progress at the Center for American Progress. Todd Phillips was a summer
legal intern with Legal Progress.
This article was published by the Center for
American Progress.
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