The Big Lie about Retention Elections
October 1, 2012
“Merit” selection proponents used to never really talk much about retention elections – basically because they didn’t have to. Up until recently, voters could be counted on to dutifully retain the judges chosen for them by legal special interest groups like state bar associations and trial lawyer advocates. In fact, a study by Professor Larry Aspin of Bradley University found that of the 6,309 judges who stood for retention election between 1964 and 2006, more than 99 percent were retained. All that began to change in 2010, when formerly obedient voters rose up and threw out three activist Iowa Supreme Court Justices who had voted to overturn the state’s defense of marriage law.
That vote in Iowa sparked a panic among the “merit” selection gang – and a change of strategy. They began to advance a new theory about the purpose of retention elections – a Big Lie designed to intimidate voters and put them back in their place as a mere rubber stamp for the lawyer-controlled “merit” commissions. The latest iteration of this Big Lie comes from a member of the Iowa trial lawyers association:
“If a voter wants to vote not to retain a judge because the judge is not a good judge (ie repeatedly exhibits poor temperament, is biased, or never gets the decisions out in a timely fashion) so be it. But to vote not to retain a judge only because one does not agree with one controversial opinion that judge joined three years ago does nothing but throw out justice system under the bus.”
The truth is, voters have the right to dump a judge for any reason they want – not just because a judge is cranky in court or tardy in rendering decisions. The case of the three Iowa Supremes unceremoniously dumped in 2010 was not simply a matter of voters disagreeing with “one controversial opinion.” In the voters’ mind, that decision and others represented a commitment to judicial activism, judicial arrogance – a willingness of judges to exceed their authority, legislate from the bench, and indifferently overturn the will of the people and their elected representatives.
These are absolutely legitimate reasons to drop a judge – far more legitimate, in fact, than dismissing a judge who doesn’t get decisions out very fast.