Gov. Christopher Christie's refusal to nominate 68 year old veteran and moderate John Wallace continues to smolder, provoking questions about when, whether, and how the judiciary should reflect electoral swings..
Judicial Selection and Retention
New Jersey Law Journal (c) ALM Media, LLC
December 3, 2010
Regardless of one's policital leanings, a troubling result of the midterm elections was the unprecedented ouster of three well-respected Supreme Court justices in Iowa who were up for routine, unopposed retention elections.
Since 1962, when Iowa's current judicial selection and retention system was adopted, no justice had ever been voted off the bench. This time, well-funded antigay-marriage groups poured more than $1 million, most of it raised out-of-state, into a targeted campaign to remove the three justices because they had joined in a 2009 unanimous ruling that the state constitution required recognition of same-sex marriages.
The Iowa vote offers just the most recent reminder of the vital safeguard to constitutional rights provided by a strong, independent judiciary, free to interpret the law without regard to the political considerations of the moment. Our nation's founders understood that if courts are not insulated from those who disagree with particular decisions, then majorities will have the power to strip minorities of fundamental rights.
If that sounds undemocratic, that's because it is, and intentionally so. As retired Supreme Court Justice Sandra Day O'Connor has noted, "a judge who is forced to weigh what is popular rather than focusing solely on what the law demands" loses "independence and impartiality."
In New Jersey, thankfully, retention of judges does not turn on popular vote. At the same time, the Iowa experience cannot help but bring to mind Gov. Chris Christie's terribly wrongheaded and damaging refusal to reappoint former Justice John Wallace Jr., not because he questioned the justice's competence but because he disagreed with some of the Court's decisions. Removing justices as a consequence of the substance of their rulings, no matter how unpopular, reflects a fundamental misunderstanding of the role of the courts and constitutes a misuse of the retention process, regardless of whether that process calls for an election or reappointment.
Either way, it's a blow to the principle of an independent judiciary.
Ironically, Iowa's merit-based judicial selection (as distinguished from retention) process has won nationwide praise. There is a commission that posts judicial openings, screens applicants and within 60 days presents three candidates to the governor, who then selects one of them. That construct curbs the influence of political parties and special interest groups and emphasizes the selection of judges based on their professional qualifications.
New Jersey's judiciary also enjoys well-deserved national acclaim, but, unlike Iowa, political influence by state senators is now commonplace. Merit-based selection by governors, without political interference, as had been New Jersey's tradition, would restore its judiciary's reputation to that which it enjoyed in the decades following the 1947 Constitutional Convention.
his editorial was published in the December 3, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
Since 1962, when Iowa's current judicial selection and retention system was adopted, no justice had ever been voted off the bench. This time, well-funded antigay-marriage groups poured more than $1 million, most of it raised out-of-state, into a targeted campaign to remove the three justices because they had joined in a 2009 unanimous ruling that the state constitution required recognition of same-sex marriages.
The Iowa vote offers just the most recent reminder of the vital safeguard to constitutional rights provided by a strong, independent judiciary, free to interpret the law without regard to the political considerations of the moment. Our nation's founders understood that if courts are not insulated from those who disagree with particular decisions, then majorities will have the power to strip minorities of fundamental rights.
If that sounds undemocratic, that's because it is, and intentionally so. As retired Supreme Court Justice Sandra Day O'Connor has noted, "a judge who is forced to weigh what is popular rather than focusing solely on what the law demands" loses "independence and impartiality."
In New Jersey, thankfully, retention of judges does not turn on popular vote. At the same time, the Iowa experience cannot help but bring to mind Gov. Chris Christie's terribly wrongheaded and damaging refusal to reappoint former Justice John Wallace Jr., not because he questioned the justice's competence but because he disagreed with some of the Court's decisions. Removing justices as a consequence of the substance of their rulings, no matter how unpopular, reflects a fundamental misunderstanding of the role of the courts and constitutes a misuse of the retention process, regardless of whether that process calls for an election or reappointment.
Either way, it's a blow to the principle of an independent judiciary.
Ironically, Iowa's merit-based judicial selection (as distinguished from retention) process has won nationwide praise. There is a commission that posts judicial openings, screens applicants and within 60 days presents three candidates to the governor, who then selects one of them. That construct curbs the influence of political parties and special interest groups and emphasizes the selection of judges based on their professional qualifications.
New Jersey's judiciary also enjoys well-deserved national acclaim, but, unlike Iowa, political influence by state senators is now commonplace. Merit-based selection by governors, without political interference, as had been New Jersey's tradition, would restore its judiciary's reputation to that which it enjoyed in the decades following the 1947 Constitutional Convention.
his editorial was published in the December 3, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
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