When three Iowa Supreme Court justices declined to raise money and actively campaign in the face of a well-funded ouster drive over a controversial same-sex marriage ruling, the decision amounted to their “Waterloo,” and they were removed in a historic sweep.
This view of the high-profile Iowa and Illinois judicial retention elections in 2010 comes from scholar James Sample of Hofstra University School of Law. In a draft law review article available online from the Social Science Research Network, Sample argues these elections will be used as playbooks for the future, and they raise hard questions about the impact on fair and impartial courts and about merit selection:
“The contrasting approaches in Iowa and Illinois, and the similarly contrasting results will, in this author’s view, become a self-fulfilling prophesy. Those who seek to unseat judges for self-interested, ideological and/or single-issue reasons will follow the playbooks of the retention opponents in both Iowa and Illinois. Judges and their supporters will—in some instances reluctantly, in others not—model their approaches on [Illinois] Chief Justice [Thomas] Kilbride’s.
“The contrasting scenarios leave open some empirically unanswerable questions. Did the Iowa justices’ principled stand not only cost them their jobs, but embolden retention opponents both locally and nationally prospectively? If so, will their principled stand—and it was surely that—actually undermine judicial independence over the longer haul? Could that passivity, sourced in concerns over the influence of money, actually have led to a scenario that ensures the certainty of more fundraising not only in contested races but in retention races as well? Unfortunately, while not empirically verifiable, I believe the answers to these questions are likely affirmative.
“Turning to Illinois, is it possible that Chief Justice Kilbride’s approach was every bit as principled as that of the Iowa justices? Reasonable observers may disagree, but, given the circumstances he faced, I certainly think that question too deserves an answer in the affirmative. His experience, however, did not come without substantial costs, both literal and figurative, personal and institutional. Those losses, while harder to measure than the electoral losses in Iowa, are nonetheless real, non-trivial, and cause for prospective concern.”
Sample’s article is entitled “Retention Elections 2.010,” as he contends the dynamics of the Iowa and Illinois retention elections “reflect a seismic shift in that balance towards majoritarian accountability that undermines the fundamental role of America’s state courts.”
Judicial retention elections are strongly, but not exclusively, associated with states that appoint judges through merit selection (four states that competitively elect judges, including Illinois, require some retention elections to stay on the bench). For the most part, retention elections have been ”the sleepiest” judicial elections. But 2010 changed that, Sample writes, as its “most notable dynamic” was ”the emergence of retention elections as major campaign spending battlegrounds.”
In Iowa, out-of-state interest groups helped fund the ouster drive, waged over a unanimous court ruling that permitted same-sex marriages. In Illinois, a pro-business coalition sought to deny Justice Kilbride a new term in the second costliest retention election ever. To learn more about these elections, you can read “The New Politics of Judicial Elections 2009-10,” co-authored by Justice at Stake.
Sample voices concern over the potential impact on courts from this style of retention election:
“[R]etention elections have arrived at a point where, prospectively, the pressures commensurate with contested elections—fundraising pressures, attack advertising, interest group pressures, and the tendency of judges to have, at least in the recesses of their minds, an increased awareness of the possible retaliatory impacts of their decisions—will become standard. The Iowa 2010 experience ensures, in my view, that the two-sided campaign mores of Illinois in 2010 will become the norm for Retention 2.010.”
And Sample sees repercussions for proponents of merit selection:
“For those who see merit selection as optimal for protecting judicial independence, Iowa must be reconciled; decades of uninterrupted resistance to moving even to a system of merit-plus-retention— much less to a system that lacks retention’s voter accountability moment—must finally be seriously acknowledged. Prospectively, addressing the new norms of retention campaigns is a necessity. Retention 2.010 is, unfortunately, here to stay.”
Sample was a co-author of “The New Politics of Judicial Elections 2000-2009: Decade of Change,” with Justice at Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics.