Tuesday, October 9, 2012

Some kind of justice

By Bill Kraus

An interesting compromise between those who support an elected judiciary and those who prefer an appointed one was casually and quietly trashed during the radical winter of 2011.

What was given the brush off was something called the Impartial Justice Act.

It was enacted at the request of all the sitting members of the Supreme Court who had witnessed or suffered the precipitous decline in the seriousness and civility of several recent Supreme Court campaigns.

What the act would have done was fully fund those campaigns if the participants accepted public money in exchange for not raising their own campaign warchests.

This act was intended to end the unseemly process of (mostly) lawyers paying for the campaigns of the judges they would appear before.

The justices got half of what they wanted when the Legislature enacted the law, but they didn’t get what they considered enough money to run respectable statewide campaigns as a part of the deal. They evidently considered this uncalled for penuriousness a fixable and a small, hopefully temporary, price to pay for the greater good of not being thought of as beholden to questionable fundraising practices.

Both candidates who contended in the 2011 spring election, the initial test of this new law, accepted the public money despite its inadequacy and pledged to forgo fundraising on their own.

Unfortunately, the timing of the first election with this law in effect couldn’t have been worse. What could have been a low cost but typical campaign got caught up in the post-Act 10 firestorm and became more a referendum on Act 10 and the governor who proposed it than a selection of a Supreme Court justice.

There were other problems with the Impartial Justice Law beyond the low appropriation which virtually excluded the use of TV advertising in their campaigns, which may not have been all that bad a side effect at that.

The more important problem was that the door to high spending parallel campaigns by special interest organizations was left wide open.

Fixes for both of these flaws never saw the light of day. The governor and the Legislature casually dumped the law and shut off even the meager funding that came with it.

This means that future judicial elections will continue down the road of the dialing-for-dollars, special-interest-driven, mudslinging personal attack modes so visible in the partisan campaigns now underway and which most of us say we hate.

It is improbable that the Impartial Justice Law will pull a Lazarus and rise from the grave it was dumped into in the spring of 2011. What faint hope of this happening would depend on the Legislature and the governor getting another letter signed by all the justices asking them to bring back impartial justice.

Fat chance.

The other route to the once traveled higher ground of selecting judges is what former U.S. Supreme Court Justice Sandra Day O’Connor came to town to promote a couple of years ago: an appointed judiciary.

I was among those who told her that we are culturally addicted to electing everybody to everything and we did have the Impartial Justice Law on the books to help keep those elections fair and clean.

With the law in the garbage the appointed system is beginning to look a lot better than it did two years ago.

I would hope we could go to an appointive system, if it is indeed possible, without the rejection election provision which caused so much trouble in Iowa and is spreading to other states, where the ad hominem strident special interests use that provision as a way to get judges who are biased in their favor or at least to get rid of judges who don’t do their bidding.

With that caveat, I think it is time to rescue our judiciary system from the kind of partisanship and pre-commitment that has put our legislators in trenches and the rest of us, including a working representative government, in a kind of no man’s land between the warring parties.

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