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Sunday, October 15, 2006

Courts - "Call of the West: Rein In the Judges"

"Call of the West: Rein In the Judges: Conservative ballot measures in many states would check judicial power. South Dakotans seek a right to sue jurists, Montanans to recall." That is the headline today to a front-page story in the Sunday LA Times by Stehpanie Simon. Some quotes:

DENVER — Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as "runaway courts."

Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.

South Dakota's ballot contains the most radical provision: It would empower citizens to sue judges over their rulings.

Other proposals would make Colorado the first state to impose term limits on top judges and give Montana residents the right to recall judges over any "dissatisfaction." In Oregon, an amendment would require Supreme and Appeals court judges to be elected by geographic district, so they reflect the values of conservative rural communities as well as the liberal legal establishment in Portland.

In three other states, ballot measures would also limit judicial authority, though that is not their primary intent. Proposition 90 in California aims to restrict government's right to condemn private property; it also takes elements of such cases out of judges' hands and entrusts them to juries instead. Nevada has a similar initiative. And a proposal in North Dakota would severely curtail the discretion judges have in settling custody disputes.

Supporters cast their efforts as populist and democratic, a way to make judges answer more directly to the citizens they serve. "This is a very measured and mild response to the perception that our courts are out of control," said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado.

Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution.

"Judges are there to protect the minority from the tyranny of the majority. They are not there to do the popular will," said Doreen Dodson, a St. Louis attorney who chairs the American Bar Assn.'s committee on judicial independence. "They are accountable to the law and the Constitution."

States have always struggled to balance judicial independence and accountability, said Rorie Spill Solberg, a political scientist at Oregon State University. Lately, she said, that scale has tipped ever more toward accountability — and toward a notion that judges should respect, even represent, the will of the majority.

All but eight states ban partisan elections for judges in an effort to keep politics — and corruption — off the bench. But Solberg and others worry that the latest wave of changes would make judges more vulnerable to pressure from interest groups and even individuals. * * *

The American Bar Assn. is so concerned about the trend that it recently produced a DVD called "Countering the Critics," to be screened at churches, Rotary Clubs and Chambers of Commerce nationwide. To encourage lawyers to speak up in defense of the judiciary, the ABA has drafted sample speeches, op-ed articles and letters to the editor comparing judges to referees, sworn to uphold the rules, however unpopular.

Contrast this with the recent conference at Georgetown Law, featuring Sandra Day O'Connor:
On September 28, Georgetown University Law Center welcomed retired Justice Sandra Day O'Connor, six sitting Supreme Court justices, and hundreds of other nationally recognized leaders in law, government, business, journalism, academia and the nonprofit sector when it hosted and co-sponsored a unique two-day conference that addressed the independence of the nation's courts.

O'Connor and Justice Stephen Breyer chaired the conference, "Fair and Independent Courts: A Conference on the State of the Judiciary." Georgetown Law and the American Law Institute served as its co-sponsors. Organizers convened the conference to promote discussion about the preservation of federal and state courts' tradition of independence — seen in partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resentment of "judicial activism" — and to develop specific recommendations to strengthen judicial autonomy and increase public confidence in the judiciary.

You can access O'Connor's speech here, via C-Span. It is identified as "A&C: Fmr. Supreme Court Justice Sandra Day O'Connor at Georgetown Univ. (10/07/2006)."

You can access the entire day-long Georgetown conference here, and download transcripts or webcasts.

Posted by Marcia Oddi on October 15, 2006 09:40 AM
Posted to Courts in general