Voting for Judicial
Independence
EDITORIAL, NYTimes on
the Web, November 2, 2006
Nearly obscured by the struggle for
control of Congress, there is another important battle in a handful of states
over measures aimed at punishing judges for their official rulings and making
them more captive to prevailing political winds. These measures all hide
behind the superficially appealing but profoundly misleading banner of judicial
accountability. And, taken together, they add up to an assault on a fair
and independent judiciary.
In Colorado, voters will decide the fate of a far-reaching state constitutional
amendment designed to kick a huge percentage of top sitting judges off the bench
by setting a term limit of 10 years and applying the cap retroactively. A
measure on the ballot in Oregon would create new geographic districts from which
appellate judges could run, as a backdoor way to oust judges from the Portland
area.
In Montana, conservative groups tried to force voters to confront Constitutional
Initiative 98, an attempt to “rein in” judges by establishing new recall
elections and making it easier to remove judges for specific rulings.
Fortunately, the state’s high court ruled this misbegotten initiative invalid
because of what it called “pervasive fraud” by out-of-state paid gatherers of
signatures.
But the wackiest and potentially most far-reaching of the judge-bashing schemes
is still on the ballot, South Dakota’s Jail 4 Judges initiative. The
brainchild of Ronald Branson, an antigovernment activist from California
operating at the political fringe, this reckless exercise seeks to keep judges
in line by amending the state Constitution to eliminate judicial immunity from
lawsuits by disgruntled plaintiffs and others. Immunity is a time-honored
way of preserving an independent judiciary.
This radical measure would create a special grand jury with a rotating
membership and loose rules — in effect, a fourth branch of government.
This new entity would be vested with the power to punish judges for their
decisions, or, for that matter, school board members or any other local public
official who had the bad luck to fit under the amendment’s broad definition of
judicial power. Writing in The Wall Street Journal, the former Supreme
Court Justice Sandra Day O’Connor correctly blasted the initiative as a bald
attempt at judicial intimidation.
By rejecting Jail 4 Judges, South Dakota voters can send a message of support
for a strong and independent judicial system — without which democracy cannot
function — that will resound nationwide.
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