October 22, 2012
Judicial Politics
by Donald P. Racheter, Ph.D.
MOUNT PLEASANT, IA As someone who for many years taught a college class entitled “Judicial Politics,” I would like to try to correct those who have been emoting of late about how the courts and judges are supposedly different from executives and legislators, that they are somehow “non-political.” Any institution composed of humans, including our churches, educational institutions, bowling leagues, newspapers, etc., etc., are political, and the periodic crusades to “take the politics out of politics” are doomed to failure.
Judges make political decisions about the allocation of values in society, and the political nature of the process is clear when some judges assert that the Eighth Amendment prohibition on “cruel and unusual punishment” should preclude the death penalty, while other judges agree with the Founding Fathers who wrote and ratified the Amendment that it does not; when some judges assert that killing a viable, late-term, unborn baby through abortion is a crime, while others call it a “woman’s right to choose”; and when some judges assert that “normalizing so-called gay marriage” is a mere interpretation of the civil rights provisions of our state constitution, while others call it “legislating from the bench.”
As I have written in Iowa Government and Politics, “. . . the fact that any Judge can ‘create law’ equal in force to that enacted by a majority vote in both the Iowa Senate and House and signed by the Governor makes it imperative that all concerned carefully screen who is put on the bench and who is retained there.” [Emphasis added.] The Missouri Plan which we use here in Iowa is supposed to ensure popular control of judges, and the fact they run for retention unopposed is supposed to allow them to run on their record, and for the people to render a verdict on that record with their ballots! It is rare for a judge running for retention to lose, but when it happened to Chief Judge Bird and two of her liberal colleagues in California because of their repeated opposition to capital punishment, and when it happened to Chief Justice Ternus and two of her colleagues here in Iowa in 2010 over the “gay-marriage” issue, it means the system is working as intended, not broken.
So those Iowans who disagree with the Varnum vs. Briendecision and choose to “vote No on Wiggins” this fall, if challenged, should point out that they are fulfilling the “good government reform” role designated for them when the Missouri Plan was adopted in our Constitution.
Public Interest Institute’s INSTITUTE BRIEF, “Judicial Politics,” is available at www.LimitedGovernment.org.
For an interview or more information on this issue, contact Don Racheter, Public Interest Institute President, at Public.Interest.Institute@LimitedGovernment.org.