All things considered, I’m feeling pretty good this morning. It’s a lot easier to tear something down than to build something up. For over a year, the Tea Party has been like the developmentally disabled kid in kindergarten whose main talent is knocking over other people’s Lego creations. Now that they’ve got their own house of government, we’ll get to see what they can actually build. Seriously, let’s see them govern. Let’s see the actual legislation they pass. Yesterday was a loss for progressives, but it was also a loss for moderate Republicans. Obama can now continue to ignore his left, the TBD Republican nominee will be pulled to his or her right. Let’s see how that works out for the GOP in 2012.

Don’t get me wrong, I’m not Christine O’Donnell, I know the difference between winning and losing. If you hate gay people and pot why do you live in California? I feel like Justice Anthony Kennedy went to Wisconsin and personally executed Russ Feingold. But at the end of the day, I live in New York. Cuomo, Schumer, Gillibrand, new A.G. Eric Schneiderman, I mean if Boehner and friends get too annoying we could always secede.

There’s only one result from last night that seems totally idiotic. The good people of Iowa ousted all three of the judges targeted by out-of-state, anti-gay groups. Way to go Iowa, nice of you to let your random dislike of gay love to motivate you all the way to the polls…

In Nevada, the people voted to protect their right to vote for state judges. That’s not surprising, people who have no understanding about what judges do want to pretend like their not horribly uninformed every two years.

But the problems with judicial elections was clearly expressed in Iowa last night. The Des Moines Register reports:

Vote totals from 96 percent of Iowa’s 1,774 precincts showed Chief Justice Marsha Ternus and Justices David Baker and Michael Streit with less than the simple majority needed to stay on the bench.

Their removal marked the first time an Iowa Supreme Court justice has not been retained since 1962, when the merit selection and retention system for judges was adopted.

This vote was all about gay marriage. The ousted judges ruled that Iowans didn’t have the right to be openly bigoted towards gays, and the voters in Iowa stood up and said: “yes we can.”

How ridiculous was this election? Check out the quote from one of the leaders against the judges:

“It appears we’re headed for a resounding victory tonight and a historic moment in the state of Iowa,” said Bob Vander Plaats, the Sioux City businessman who led a campaign to remove the justices because of the 2009 gay marriage ruling. “The people of Iowa stood up in record numbers and sent a message … that it is ‘We the people,’ not ‘We the courts.’ “

What the hell does that mean? We the people not we the courts? So is there to be no “check” on “the people,” even when they want to do something unconstitutional?

It goes to the heart of the problem with judicial elections. “The people” are horrible arbiters of constitutional interpretation. For instance, I’ve talked a lot of crap about Anthony Kennedy over Citizens United, but I shouldn’t be able to vote in my constitutional interpretation over his. I’m just some guy, Kennedy has dedicated his life to studying the issue. I think he’s wrong, but what I, and 50% plus one of my friends think shouldn’t really be part of the discussion. Shouldn’t there be at least one branch of government that isn’t subject to the slings and arrows of the uninformed mob?

Sorry, I mean uniformed but well funded by people with not-so-hidden agendas mob:

“In the end, the aggressive campaign to misuse the judicial retention vote, funded by out-of-state special interests, has succeeded,” Drake University Law School Dean Allan Vestal said. “The loss of these three justices is most unfortunate, and the damage to our judicial system and the merit selection of judges will take much to repair.”

Congress should be beholden to the people. The President should be beholden to the country, and then the people. Judges should be beholden to the law. They have enough trouble doing that when they are appointed for life. Surely, putting them up for periodic elections only further obscures their true constituency.

Iowans dismiss three justices [Des Moines Register]
Law Blog Election 2010 Roundup: California Says Nope to Dope, More [WSJ Law Blog]


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