Bench Strength

By November 7, 2010The WIN Column

Advocate contributor and award-winning lawyer Jimmy Nguyen says the Election Day ousting of three pro-marriage equality Supreme Court justices in Iowa marked a sad day for judicial independence. First Posted on Advocate.com

Election Day 2010 will go down in history as a sad day for judicial independence. On November 2, Iowa voters removed three justices from the state’s Supreme Court because they supported the court’s landmark 2009 decision recognizing the right to same-sex marriage in the Hawkeye state. Chief Justice Marsha Temus and fellow justices David Baker and Michael Streit were up for a routine retention vote, but became victims of a vicious campaign launched by opponents of marriage equality. Their ouster threatens one of the fundamental reasons why our country has an independent judiciary – to protect the rights of minority groups. It should also serve as a powerful reminder for why the LGBT community must help ensure the independent strength of the judicial bench.

In April 2009, the Iowa Supreme Court ruled in Varnum v. Brein that restriction of marriage to a man and a woman violated the state’s Constitution. The court relied heavily on the doctrines of equal protection and fundamental fairness; it also found no sufficient reason to prevent gays and lesbians from getting married. Significantly, the decision was unanimously supported by all seven Iowa Supreme Court justices. That spoke volumes, and demonstrates that none of the justices were acting like rogue outliers.

Not surprisingly, the ruling riled opponents of marriage equality. The National Organization for Marriage, Bob Vander Plaats (who lost the nomination for Iowa governor) and other conservative groups launched a campaign to remove the Iowa justices. In Iowa, Supreme Court justices are appointed by the governor and face retention votes every eight years. Although all seven justices voted to legalize same-sex marriage, only three were slated for a retention vote in 2010. By bad luck of the draw, Justices Temus, Baker and Streit became the targets. Some $1 million (mostly from out-of-state sources) was poured into a campaign to paint them as activist judges who had to be terminated. By approximately a 54%-46% margin, the campaign succeeded. For the first time since Iowa’s current system began in 1962, Supreme Court justices were bounced from the bench.

The result is a sad state of affairs where judges can be ejected for their ruling on a single case, even though they fulfill their duty to decide that case based on their honest interpretation of the law. It is reminiscent of the controversial 1986 electoral campaign in California which removed Chief Justice Rose Bird and two other California Supreme Court justices because they opposed the death penalty.

But two factors make the Iowa situation even more egregious. First, Rose Bird and her two fellow justices were ousted mostly due to their opposition to the death penalty in 60+ cases over the course of time. There was also distaste because Chief Justice Bird voted down California’s “use a gun, go to jail” law. While her ouster remains controversial, it was at least based upon a body of decisions – not based on one ruling in one case, which was enough to take down the Iowa justices. Second, the Iowa Supreme Court was unanimous on the issue of marriage equality. None of the seven justices could be painted as outliers, as Rose Bird and her two colleagues were portrayed. Perhaps the marriage equality opponents want to wipe out all seven of Iowa’s high court justices. If that sounds like a ridiculous response to the court ruling, it is.

It also creates a dangerous precedent which threatens the core American axiom of judicial independence. Judges should reach decisions based upon their reasoned interpretation of the law, and by being authentic to what they believe is right. They should not feel pressure from outside forces or fear retaliation if their rulings prove unpopular.

I understand full well the importance of these principles. My father was a magistràt judge in the French civil system of South Vietnam. My family fled Saigon in April 1975 for the United States, precisely because my parents did not want to live in a Communist regime where the government controlled everything – including judges.

In America, the concept of judicial independence dates back to our Founding Fathers. In the Declaration of Independence, Thomas Jefferson protested that King George III has “made Judges dependent on his will alone.” To avoid a situation (as in Britain) where judges had to side with the King and Parliament just to keep their jobs, America’s framers instilled judicial independence into the Constitution. That is why federal judges get life tenure and salary protection. Federal judges can be impeached, but only in the unusual circumstance when they commit “high crimes and misdemeanors.” They cannot be jettisoned just because they make a controversial decision. With these safeguards, judges in our federal courts can feel free to interpret the law using their best impartial judgment. They also serve a vital role as the third branch of government to keep the executive and legislative branches within legal boundaries.

More importantly, judicial independence protects individuals and minority groups from oppression by the majority. It has given our country a history of groundbreaking U.S. Supreme Court cases that advance minority rights. Racial minorities celebrated Brown v. Board of Education in 1954, which ended racial segregation of public schools and rejected the insidious notion of “separate but equal”; and Loving v. Virginia in 1967, overturning state laws banning interracial marriage. The LGBT community applauded Romer v. Evans in 1996, striking down Colorado’s infamous Amendment 2, which precluded any legal protection of gay rights; and Lawrence v. Texas in 2003, which invalidated arcane state laws criminalizing sexual conduct between two people of the same sex. These rulings happened because judges were free to be authentic to what they believe is just under the law.

But imagine if famed former U.S. Supreme Court Justice Earl Warren (who wrote the Brown v. Board of Education decision) and his fellow justices were kicked off the High Court by white voters who wanted to keep segregation in place in 1954. Or what if the heterosexual majority banded together to oust Justices Kennedy, Stevens, Souter, Ginsburg and Breyer after they struck down Texas’ gay sodomy law in Lawrence v. Texas? If that sounds like a crazy idea, it is.

Yet, it is permitted in America’s state judicial system. Life tenure is only federal judges. State court judges do not have such protection, and they are generally subject to re-election. There are sound reasons why judges should be put up for re-election or retention votes, though voters usually do not pay much attention. But when state court judges make a controversial decision which draws enough campaign dollars to attack them, they are increasingly vulnerable to being ousted by public vote.

That is not a good thing. Courts and judicial elections should not become politicized. Special interest groups should not influence the judiciary by pouring millions of dollars into campaigns. Judges should not have to stump during election season to defend their rulings. They should be retained based on their overall merit in reaching impartial decisions across numerous cases. There is nothing wrong with healthy debate about whether judges make the right calls. But it is unhealthy to our democracy for justices to be jettisoned when they unanimously join their peers to reach a good faith interpretation of the law.

And the LGBT community should take notice. Like all minority segments, we cannot rely just on legislators and elected officials (who of course win office only with majority support) to protect our rights. As history has shown for other disadvantaged groups, it is often the courts which break civil rights ground.

Gays and lesbians need to care deeply about preserving an independent judiciary. We need to defend judges who are attacked merely for upholding Constitutional principles of equal protection and due process. We need to support justices who decide cases based upon what they believe in their hearts and minds is right under the law, not based on fear of losing their jobs. We need to help ensure there is strength in the bench.

In 1789, Thomas Jefferson described the judiciary as “a body which, if rendered independent and kept strictly to their own departments, merits great confidence for their learning and integrity.” For the sake of our LGBT rights movement, let’s hope we can bolster confidence in the courts of Iowa and all other states. The fight for complete LGBT equality will be won only with an independent judiciary — one that can display true bench strength.