Reading my ABAnet e-mail, I see that there are several states that have judicial restraint propositions on the ballot this year. This is most likely the states' attempts at corraling those damn activist judges, ruling according to the laws written and based on public policy. Freaking jerks.
Actually, I'm quite aware that there is such a thing as judicial activism, the concept of "legislating from the bench." This occurs where the Court steps into legislation's shoes and not only defines the law, but describes how the law is to be applied. The two biggest examples that I can think of are "Roe v. Wade" - where the Court instructed how abortion was to be handled, and Miranda v. Arizona, where the Court instructed the states what each person must be apprised of when arrested. Both of these decisions, I think most people could agree, would be tantamount to legislating from the bench, but I don't know how many "activist" decisions these days really are "activist" in this sense. The problem is that many people see the courts issuing decisions that they disagree with, or they get confused with the judiciary's role in the system, accusing the courts of undermining the democratic process. This is little more than a fundamental misunderstanding that No Child Left Behind should clear up in our public schools, if civics is still considered important for our children to learn and achieve benchmarks on. Sorry for the snark, but I really hate NCLB.
Anyway, here are some of the issues on the ballot in some states:
Colorado - Amendment 40 - would impose term limits on Appellate judges. Quite frankly, I don't see term limits as a bad thing per se.
In TX, appellate and supreme court justices are elected to terms, though there's no term limits. It's not the lifetime appointment that federal judges enjoy. I think that electing judges to defined terms can be a helpful thing, but I think people need to understand why term limits haven't been imposed as of yet; the idea that judges who aren't subject to term limits will be less burdened by the pressure to listen to groups that are better able to help them get re-elected.
South Dakota - Amendment E - Would eliminate Judicial immunity and allow litigants to sue judges for a number of reasons, including intentionally violating due process rights and deliberate disregard of material facts.
At first, I was going to say that I thought this wasn't a bad idea, either. But do we really want to subject judges, who are supposed to be impartial to scrutiny by those judging them? How does it help the judicial process to have a judge be subject to a lawsuit for an opinion that offends a party? What about jury decisions - how do you approach those? What would the standard of proof be, and how would a prospective plaintiff bring suit? Who would be judging the judge? Quite frankly, even if this amendment does pass, I don't see how it could be faithfully implemented.
Montana - Constitutional Initiative 98 - would allow citizens to petition for recall of judges FOR ANY REASON. I trust my readers (all 4 of you) can see what's wrong with this.
Oregon - Ballot Measure 40 - would require that appellate judges and supreme court judges be elected by district, and that the judges would have to reside in their respective districts. Again, this is one that I'd like to agree with, but just can't, if for no other reason that the proponents say this will cut down on judicial activism. The hypothesis is that by putting districts, then each district will be represented, instead of particular areas having an overpowering majority. I tend to agree with the opponents that judicial quality isn't decided by geographic location. I also think that the judiciary, more than any other branch, is less prone to misrepresenting the people, but that's for another point.
Hawaii - would put a mandatory retirement age for judges at 70. I think this is ok, but I'd have to think about it more before I was really sure.
Anyway, what do you think?