A lot of very good things happened last Tuesday as Americans moved to reclaim the nation from the grasp of a kleptocratic Democrat party. But one of the big victories for common sense and the rule of law didn’t involve rival candidates. It didn’t gather the attention of Sarah Palin or the various Tea Party organizations. It didn’t happen in a state with a nationally significant election. It happened in Iowa.
Back in April 2009 a unanimous Iowa Supreme Court ruled that gay marriage was a constitutional right in Iowa notwithstanding law, and several millenia of human tradition, to the contrary. In one fell swoop seven justices used the brute force of their office to intervene in what was clearly a political decision. Unfortunately for three of their number Iowa is a state in which at least some judges remain accountable to the people. Last Tuesday the voters of Iowa created a shockwave by dismissing three Supreme Court justices, Chief Justice Marsha Ternus, Justice David Baker, and Justice Michael Streit, via a retention election.
Naturally, this has provoked outrage in the Ruling Class™ which has decided that we are better off ruled by unaccountable technocrats and judges than by ourselves and our elected representatives.
On its surface, at least, the idea of judges insulated from all political pressure has a certain appeal to those who like good government and are both distrustful and ignorant of human nature. The idea goes, as best as I can understand it, that if a politician (governor) nominates or appoints a judge with the influence of other politicians (some group of legislators or a panel chosen by legislators) then the person chosen will neither be a politician nor be overly concerned with much other than interpreting statutes. The fallacy here, of course, is that judges are human and are just as subject to our need for acceptance, at least among what we view as our social class, as anyone else. And as Lord Acton put it back in 1887, “power tends to corrupt, and absolute power corrupts absolutely.”
By investing any group of people with near absolute power and absolute unaccountability you end up with the Ninth Circuit. You end up with the mind bending experience of constitutional amendments being declared unconstitutional.
The argument is made that unlimited tenure gives judges, but especially federal ones, the ability to make tough decisions without fear or favor. That has some attraction if one has a strong distrust of the electorate or… as in the case at hand… one adheres to beliefs or practices unlikely to gain public support but which you wish to ram down the throat of people you disagree with. When one looks at the state of jurisprudence in states with and without judicial accountability there is little if any difference in the decisions coming out of those courts. At the national level one can hardly say that our federal judiciary is either better or stronger for its lack of accountability. Those instances where the justices have imposed their own views on the nation, Plessy and Roe come instantly to mind, the nation has suffered grave harm.
As our political culture has an aversion to impeaching judges for disregarding the law one is left with either supporting unaccountable judges or judges who must answer for their flights of judicial fancy. The evidence so far indicates that voters are exceedingly wary about dismissing judges. Even the most vociferous critics of judicial accountability can’t point to a pattern of judges being dismissed by the voters either arbitrarily or in the wake of a particularly odious decision. In fact, the number of dismissals is so rare, this being the first to occur in Iowa under the current law which was passed in 1962, that critics can recite the entire universe of occurrences without taking a second breath.
In the next months we will see various liberal groups push very hard to remove judges from the last vestiges of public accountability under the guise of good government. Just as the establishment of virtually anonymous and unaccountable authority vested in the federal regulatory agencies was supposed to make us safer/healthier/smarter/prettier/etc. so to is a judiciary which is answerable to no one.