Last week’s C|M|LAW conference on The Politicization of Judicial Elections drew more than 200 participants, and led Professor Susan Becker to be sought out by a Nevada reporter for assistance in understanding a controversial redistricting decision a state judge recently entered there.
The conference was inspired by the November, 2010 elections in which three sitting Iowa Supreme Court justices were ousted from the bench as a result of the court’s unanimous ruling in Varnum v. Brien, 763 N.W.2d 862 (2009). The Varnum decision struck down, on equal protection grounds, a state statute limiting marriage rights to a union between a man and a woman. The conference examined the effect, if any, the ouster of these judges may have on an judicial independence as well as its effect on future efforts to present state court challenges to laws prohibiting marriage for same-sex couples and to otherwise advance the civil rights for LGBT persons through state court litigation.
More specifically, the conference addressed such issues as the importance of an independent judiciary and whether that independence might be undermined by judicial elections that are highly politicized due to socially contentious issues the court has recently resolved or will resolve in the near future. In Iowa, for example, that politicization took the form of partisan interest groups funneling resources into the election process to oust justices who voted the “wrong way” by favoring LGBT rights in Varnum. A similar pattern has emerged in the recent Wisconsin elections where the incumbent justice was almost voted out of office due to opponents’ assumption that this conservative justice would vote to uphold state legislation rendering public employee unions powerless.
Speakers at the conference included Former Iowa Chief Justice Marsha K. Ternus, who spoke on judicial independence and the polarization of the judiciary, and Camilla Taylor, the Lambda attorney who successfully litigated Varnum through the Iowa courts. Ms. Taylor spoke on the background of the case and her reaction to the election backlash. In addition, Ohio State Professor Daniel Tokaji, an expert on election law and issues, discussed judicial elections more generally. C|M|LAW Professors Susan Becker and Matthew Green organized the conference, offered introductory remarks, and moderated the panel discussion.
The Nevada news story, A political judiciary – A Carson City judge’s sortie into politics raises concerns, by Dennis Myers, explains the role of Nevada District Judge Todd Russell in that state’s legislative redistricting. The Nevada Legislature had enacted redistricting plans for both the Legislature and the state’s U.S. House seats. Those plans were vetoed by Gov. Brian Sandoval, and rather than send the matter back to the legislature for resolution, Judge Russell appointed three ‘special masters’
The article’s author sought out Professor Becker for comment: “Judge Russell’s creation of an entirely new system of appointing special masters to devise the redistricting plan is creative, and arguably born of necessity,” said Cleveland State University law professor Susan Becker, who has done work on the politicization of the courts. “But a strong argument can be made that the remedy is unconstitutional because it contravenes the unambiguous language of the Nevada constitution’s redistricting provisions.”
You may read the full story at: http://www.newsreview.com/reno/political-judiciary/content?oid=4186254
The conference video and other supporting materials are available to the public as part of the C|M|LAW Library’s open access research guides at: https://www.law.csuohio.edu/lawlibrary/guides/sexualorientation#judicialindependence
The Cleveland State Law Review will be publishing the comments and essays submitted by the speakers in its Spring 2012 issue.