Sure, elections are mostly about politicians and political parties. But this year, and with growing intensity, they are about the law and judges, too. From coast to coast, hamlet to hamlet, Election 2006 is shaping up to be a referendum on how Americans view the other branch of government—you know, the one that is supposed to be above politics.
Here is an example. "I want you, the voters, to know," the candidate told the crowd, "that I oppose abortion. I support having the Ten Commandments in our schools and courthouses. . . . I support the Second Amendment right to bear arms. . . . I believe marriage is between only one man and one woman." Nothing particularly unusual about a stump speech like that, right? Except that the candidate happens to be running for a position on the Kentucky Supreme Court. Rick Johnson, the High Court candidate from the Bluegrass State, makes no bones about where he stands (and how he will vote if he makes it to the bench) on the most contentious issues of our time. It's a tactic that is growing more and more popular around the country as laws and rules that once prohibited judges from campaigning like regular politicians have eroded or simply been overturned.
And while some judges like Johnson are on the ballot this election season, judges as a whole have become major campaign issues and even the subject themselves of ballot issues. In Colorado, for example, conservative politicians are seeking to impose term limits upon the state's appellate judges—a move that would force the removal of nearly 70 percent of that state's Supreme Court judges. In Hawaii, there is a big ballot fight over mandatory retirement ages for judges. In Oregon, there is an initiative that would create "voting districts" for judges to give residents a chance to have judges who better reflect their own values. North Dakota voters will be asked to limit the power of judges to rule in and on certain child custody cases. And from South Dakota comes the granddaddy of them all—a measure that would allow citizens to sue judges (and even force them to jail) over unpopular decisions.
Judges clearly are becoming more political—candidate Johnson is not alone in his willingness to pre-judge issue that will come before him as a judge— so perhaps it is no surprise that the art and act of judging is becoming more politicized. If judges are going to act like politicians, more and more voters seem willing to treat them that way. You can decide for yourself whether you think this is a good trend or not. Me? I think it's a disaster. The more partisan judges and judging seem, the less respect and authority judges will get when they issue unpopular decisions. And the ability and courage to make unpopular decisions is what judging is all about.
Good luck on election day when you have your chance to judge the judges.