We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.
— Charles Evans Hughes, May 3, 1907 Speech
Oklahomans now have a reason to really be mad. Before the recent election they were mad because of something they thought might happen some day even though it had never happened anywhere in the country. Now something bad has actually happened and unlike folks in Iowa, there is probably nothing they can do about it. I’m speaking of the 70% of the Oklahoma voters who on election day passed a constitutional amendment outlawing, among other things, the use of Sharia law in Oklahoma. Two days after the election Federal District Court Judge Vicki Miles-LaGrange said the amendment might run afoul of the U.S. constitution and said the state election board could not certify the results of the general election until after a November 22 hearing on a preliminary injunction.
Many Oklahomans took this as a sign that a judge had taken it upon herself to substitute her judgment for the will of the voters and at least one of them suggested that she be recalled. He probably hoped Oklahomans could imitate Iowans. He’s in for a disappointment, but first, here’s what happened in Iowa.
Iowa has a Judicial Merit Selection system. Judges in Iowa are appointed by the governor from among a group of lawyers recommended to the governor by a non-partisan commission. Periodically the judges stand for retention. The only question before the voters is whether the particular judge should be retained. The system has been applauded by those who believe that selection of judges should not be influenced by expensive campaigns involving contributions to the campaigns from those who may some day appear before the judicial officer receiving the contribution. The system is opposed by those who believe that a contested election involving lots of money contributes to a healthy democracy the way the infusion of hundreds of millions of dollars into the rest of the electoral process insures that the best candidate is elected.
The Iowa election demonstrated that even in retention elections where there is no competition, it is possible for the public to get involved in a meaningful way by contributing huge amounts of cash to those opposing a judge. Here’s why the Iowa justices were not retained by the voters.
In a unanimous ruling two years ago, the Iowa Supreme Court struck down a law that defined marriage as between a man and a woman. That decision made Iowa the first state to permit same-sex marriage. That upset those opposed to same sex marriage and they began a campaign to get rid of three of the Supreme Court justices in Iowa who were up for retention in 2010. Led by a group known as “Iowa for Freedom” (a group that supports most freedoms although not a freedom for homosexuals to marry whom they wish) and supported by $700,000 in contributions from inside and outside Iowa, they succeeded in getting the three justices up for retention removed from office in an election in which the only question was whether they should continue to serve. Bob Vander Plaats, who organized the group and directed the ad campaign against the judges, said this was a way to remind judges that “the people are watching their decisions closely and ultimately have final say over their government. “It’s we the people, not we the courts.” The people, he believes are more constitutionally literate than the courts. Iowa was not the only state affected by large infusions of cash in the 2010 election cycle.
Chief Justice Thomas Kilbride of Illinois was also on the ballot in an uncontested election where the only question was whether or not he should be retained. A pro-business group known as the Illinois Civil Justice League wanted him out and spent more than $1 million to convince voters to oppose his retention. In ads it ran it said he not only was anti-business but sided with sex-offenders and murderers, the kinds of things political opponents usually say about each other in contested elections but less frequently about someone who has no opponent. Justice Killbride raised $2 million to defend himself and was ultimately retained by 66% of the voters.
The lessons from Illinois and Iowa are that judicial retention elections are becoming increasingly ugly and are beginning to look like contested political contests instead of non-partisan judicial retention elections, a fact that will please those who want judges to enjoy the hurly burly of political life that those involved in the political process enjoy.
Oklahomans will probably suffer a bit of penal envy in that there is no way they can punish Judge Miles LaGrange at the polls. As a federal judge, she is not subject to recall. She can only be impeached by the U.S. Senate. And as if that weren’t bad enough, Oklahomans are once again threatened by the possible advent of Sharia law in Oklahoma courts. All in all, it has probably taken some of the fun out of the last election for them.