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Of Elections, Judges and Stupidity

By Andrew Cohen
Special to washingtonpost.com
Saturday, October 7, 2006; 12:00 AM

Election season this year means open season on judges around the country. In Montana, riled-up citizens tried to get onto the ballot a measure that would allow state court judges to be recalled from office at any time for any reason. In South Dakota, an initiative is set to be voted upon in November that would allow citizens to sue and otherwise punish judges for unpopular decisions. And in Colorado, a conservative group is fighting to impose sweeping term limits upon all of the state's appellate court judges.

Let's take the last one first. Colorado's Amendment 40 would remove from office at the same time five of the state's current Supreme Court justices and seven of its current 19 intermediate appellate court judges. The state's judiciary thus would lose on one day a vast reservoir of institutional knowledge and experience -- not to mention by definition the best judges that Colorado has to offer. Why? Because proponents of the initiative, including John Andrews, the leader of the movement, believe that "there's a danger of public officials curdling like old milk if left around too long."

Andrews, a former president of the state senate, wants to turn the judicial branch into just another hack political body like the one he just left, full of men and women who share the prevailing political view of the day. He apparently is annoyed at and whiny over a few recent state supreme court decisions and believes that the only way to get judges to make decisions that are popular (to him, anyway) is to make those judges more accountable to the electorate. Never mind all that "independent judiciary" nonsense our children learn about in school. And pay no attention to the fact that Colorado's existing judicial system is ranked among the leaders nationally in rooting out bad judges.

Amendment 40 is such a bad idea -- purporting to solve a problem that does not exist by offering a plan that would make things worse -- that it has driven the state's major political figures of past and present, both Democrat and Republican, to come out against it. The current governor, Bill Owens, a Republican who was once the darling of the national party, has teamed with Roy Romer, his fabled Democrat successor, to come out against Amendment 40. So too has the Republican Attorney General. But it says something about the current political climate that an idea as senseless as this one would have made it even this far.

Speaking of senseless, welcome to South Dakota, where supporters of Amendment E hope a new day will soon dawn where citizens will be able to turn the table upon judges and punish jurists over unpopular decisions. Amendment E would create a "grand jury" of citizens, rotating regularly, that would meet to determine whether a complaint against a judge warranted taking away from that judge long-held "immunity" from lawsuits (right now, and for obvious reasons, you can't sue a judge for failing to rule your way). Amendment E, as in Error, means that a group of citizens who don't like a judge's decision -- remember, judges when interpreting the Bill of Rights are the only checks against the tyranny of the majority -- can take their revenge.

Under Amendment E, judges could lose part of their salary or retirement pay depending upon how much trouble they get into with that runaway grand jury the initiative would create. There is nothing subtle about Amendment E: vehemently anti-judiciary forces want to diminish the authority of the courts and to destroy the independence of the judiciary. And the worst part? They seem to be winning, if recent polls in South Dakota are accurate. Just imagine what the passage of Amendment E would mean to the practice of law, and the legal system itself, in South Dakota. Just imagine what will happen when the inmates are allowed to run the asylum.

Fortunately, at least, the citizens of Montana won't have the opportunity, for now anyway, to vote this November on another ominous anti-judiciary measure. CI-98 was designed to allow Montanans to recall state court judges at any time for any reason. All it would have required was a "justification statement" that set forth "any reason acknowledging electoral dissatisfaction with a justice or judge notwithstanding good faith attempts to perform the duties of the office." But CI-98 now is in legal trouble before Montana voters get to see it; turns out that there may have been fraud in the collection of the signatures needed to get the measure, and a few others, on the ballot in the first place. Right now, thankfully, CI-98 is dead in the water. Let's hope it stays that way.

It is tough enough to be a judge these days, especially a state-court judge. There is perhaps more outward political pressure upon judges than there has ever been before at a time when they are less insulated, and thus more prone to political attack than ever before. Nationally, the false charge of "judicial activism" has made local judges the target of special-interest political groups even when those judges are simply following established law -- simply following the precedents that have been given to them by the higher courts, including the not-exactly-liberal United States Supreme Court. Clearly, that poison has flowed downhill from Washington, D.C. all the way to the Rocky Mountains.

These dangerous "grassroots" (read: carefully and professionally coordinated) measures are boldly and brashly designed to scare judges away from making tough and sometimes unpopular decisions about some of the most controversial issues of our time. They are designed to make the judiciary bend to the will of the masses. But in the end, if Amendment E and Amendment 40 and others like it pass into law, the masses will lose. They will lose when brave and smart men and women no longer decide to become judges because of the harassment explicit in these measures. They will lose when the rule of law, administered now almost always by judges of good faith and good will, becomes as malleable as the political platforms of our time.

Smarter men than you or me, and certainly smarter men than the folks who came up with Amendment 40, Amendment E, and CI-98, set up a system of government where the judicial branch stands a bit apart from the political process in the order of things. That separation of powers has worked wonderfully well now for nearly a quarter of a millennium. If that changes, on these terms, it changes at our grave peril.

Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.


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