Legislators and special interests are making sure we get the state court judges they want

Source: L. Jay Jackson, ABA Journal, July 2013

Not content that Iowa Supreme Court justices have been sufficiently chastised for legalizing gay marriage, a group of conservative state legislators tried to cut the salaries of the four remaining justices who were part of the 2009 decision. In April the lawmakers filed an amendment to slash their annual pay from $163,200 to $25,000. Voters had already removed the other three justices who voted for same-sex marriage in a 2010 retention election after activists campaigned against them….Although Iowa legislators dropped the pay cut amendment in May, experts nevertheless expect more such efforts. They say these measures reflect a broad trend of attacks on impartial arbiters who vote in ways that anger certain groups. It is part of a national war on state courts fought mostly by legislators and special interests who are targeting judges with negative campaign ads, and by legislators attempting to pack or unpack higher courts with like-minded jurists. Judges are battling from the bench, often with their hands tied by ethics rules that require them to take the high road, despite low blows. Legal observers say the judiciary is under attack as never before, jeopardizing the American tradition of impartial jurisprudence….

State Judicial Threat Assessment
Some state courts are feeling the pressure more than others. Here is a look at what’s going on around the country, where threats against the judiciary are high, low or somewhere in between.

CALIFORNIA
Last year, California passed disqualification rules that go into effect if a judge received contributions of $5,000 or more in support of a campaign during the last six years (or in support of an upcoming campaign) from a lawyer or party involved in a case. The rules require judges to disclose campaign contributions of $100 or more from a party, lawyer or law office involved in a case and to complete a campaign ethics course before the election.

DELAWARE
Supreme court justices are appointed for 12-year terms through a rigorous merit selection process where a nominating commission sends three names to the governor.

IOWA
Three supreme court justices were voted out during the 2010 retention elections for ruling in favor of gay marriage. And this year, legislators sought to reduce the salaries of certain remaining justices by more than three-quarters. The measure was later withdrawn by sponsors after widespread condemnation.

KANSAS
This year, state legislators scrapped merit selection and gave the governor authority to name Kansas Court of Appeals judges, subject to Senate confirmation.

MICHIGAN
In 2008, outside groups lobbied to reduce the size of the supreme court by two justices, reportedly to remove two Republicans on the court. The next year, the supreme court enacted strong recusal rules allowing the full court to determine whether a challenged judge should be removed from a case.

OHIO
Big business and the insurance industry give generously to stack the bench with pro-corporate candidates, resulting in the high court issuing a disproportionate amount of rulings abridging injured plaintiffs’ rights.

TEXAS
Earlier this year, legislators proposed recusal of judges who have accepted more than $2,500 from a party or law firm arguing before them. And a former Texas Supreme Court chief justice recently said the state has “one of the worst systems” for judicial elections.