ILNews

Indiana Judges Association: Protect 'We (All) the People'

Back to TopCommentsE-mailPrintBookmark and Share

IJA-Dreyer-DavidIn 1947, 16 German judges were tried and convicted for crimes against humanity, that is, enforcing Nazi racial purity laws supporting the Holocaust. In 2010, three Iowa judges were attacked and removed for striking down a same-sex marriage ban, that is, what some supporters call a marriage purity law. All these judges were guilty of doing their job. So what’s the difference? Well, the Nazi judges were following what they felt was required by the German government, and to some extent the German people, regardless of the consequences. But the Iowa judges were guilty of doing what they felt was required by the law, regardless of the consequences.

Afterwards, Iowa law professor Todd Pettys told the Wall Street Journal, “The notion of throwing someone out on the basis of one ruling is entirely in tension with all other considerations that went into coming up with Iowa’s policy [of keeping electoral politics out of the judiciary] . . . Given this, you’d think that the standard for rejecting a judge would be pretty extreme, like misconduct or a pattern of blatantly disregarding the rule of law. . . There’s just no misbehavior [here] of any kind.” So has electoral politics seeped into the American judiciary?

In 1849, a South Bend state trial judge named Elisha Egbert freed former slave David Powell and his family who were tracked down by their Kentucky “owners.” He interpreted a 1793 law to allow only damages for runaway slaves, not possession. If Judge Egbert was facing slave-owning voters, would he have been thrown out? A year later, Congress passed the Federal Fugitive Slave Act, and Northern judges everywhere followed the law to return former slaves to former masters. What would Judge Egbert have done under the new law? Presumably, he would have done his job – interpreted the law and followed it. If he was still in office.

Unfortunately for all Americans, a new Brennan Center for Justice report entitled “The New Politics of Judicial Elections” identifies a “grave and growing” challenge to impartial consideration of judges and the emergence of several “super spenders,” like the U.S. Chamber of Commerce. But is this new? Under accusatory euphemisms like “activist” or “legislating,” there is a discouraging record of judicial challenges based more upon a partisan single interest scorecard than the rule of law:

In 1996, Tennessee Justice Penny White was rejected for just concurring in a unanimous decision reversing a death penalty conviction – three California justices were earlier removed because of death penalty opposition.

In Kansas, Chief Justice Lawton R. Nuss and three colleagues recently survived strong opposition (abortion).

In Colorado, Chief Justice Mary Mullarky retired this year rather than face an organization called “Clear The Bench.” (taxes, redistricting, eminent domain)

In Illinois, Chief Justice Thomas Kilbride vigorously fought and survived opposition based not upon any ruling, but seeking a more partisan court for upcoming political redistricting. Even local cynics conceded any new judge might still be independent. (“It’s conceivable that [the court] would do what it ought to do.” – Illinois official Dawn Clark Netsch)

“The business of the law is to make sense of the confusion of what we call human life, “said poet Archibald MacLeish, himself a lawyer, “to reduce it to order but at the same time to give it possibility, scope, even dignity.” This could be a standard by which to judge a judge – not whether we agree on a single case, or to bully an expedient political point. Bob Vander Plaats, the Iowa opposition leader, declared, “It’s ‘we the people,’ not ‘we the courts.’” But according to the Founding Fathers, he is wrong. The plain words of the Constitution give power to the people – and deliberately balance that power with the rule of law. So it is more accurate to say, “We all the people (protected by the law all the time),” not “we the (majority of) people (only in one election on one issue).”

What can be done? Nothing. In a democracy, no law should stop these “super spenders” and single-issue thinkers. But judges who forfeit their independence for short-term considerations may face long-term consequences. Just ask the German judges. Overall, there has been no diminishing effect on the courage and dedication of our judges to do what is right rather than do what polls show. But there will always be good judges who will be removed, who will get thrown out for the wrong reason, or no reason. Regardless, the Republic stays strong because judges stay strong. Just ask the Powell family.•
__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed in this column are the author’s

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

ADVERTISEMENT