Judicial independence remains under fire

Matt Apuzzo

WASHINGTON — Efforts to curb judges’ independence suffered some Election Day setbacks, but supporters pledged to keep fighting against a judiciary they say has lost touch with America.

The problem, critics say, is that judges too often make laws rather than interpret them. On last Tuesday’s ballots, the possible solutions ranged from term limits to prison time. All failed, most by wide margins.

Judges say such efforts threaten their autonomy and some legal scholars see them as part of an organized campaign to persuade voters that judges, like legislators, governors and presidents, are policymakers who need political oversight.

The frontier of the movement was South Dakota, where voters considered allowing judges to face lawsuits or jail time for their opinions.

“People are not going to allow judges to take over this county,” said Ron Branson, who conceived the South Dakota measure and is promoting it nationwide. “They talk about judicial independence but they’re getting involved in things they have no power to order.”

In Montana, three Republican legislators backed a proposal that would have allowed judges to face recall for any reason. The measure was voted upon, but the results weren’t counted because judges found fraud and deception in the petition drive. Supporters of the measure said it was just another arbitrary ruling by the courts.

“We’re not off-the-wall people. We’re three leadership people in the Montana House of Representatives,” said state Rep. Ed Butcher, who said they were trying to send a message that jurists “have to be judges rather than legislators.”

It’s a familiar refrain in these debates. Critics, frequently conservatives, have used the phrase “activist judges” to refer to jurists they say are legislating from the bench.

President Bush has used the term to criticize opinions such as the court-ordered legalization of gay marriage in Massachusetts.

That unhappiness was clear in Oregon, where people wrote impassioned statements supporting a measure requiring that appellate judges be selected from diverse areas of the state. The courts currently are dominated by city judges who are reinterpreting the state constitution, supporters of the measure said.

(Associated Press)