Republicans in the Pennsylvania House of Representatives recently introduced resolutions to impeach four Democratic Pennsylvania Supreme Court justices after the justices found the Republican-drawn congressional maps to be unconstitutionally gerrymandered and imposed a new map for the upcoming election. The resolutions were introduced one day after a federal district court and the United States Supreme Court both declined efforts to block the new map.
A couple of years ago, a California judge sentenced a Stanford University swimmer found guilty of intent to commit rape of an intoxicated/unconscious person, penetration of an intoxicated person, and penetration of an unconscious person, to six months in jail. California law permitted a maximum sentence of 14 years in prison, but the six months was not a sentencing disposition that the judge staked out independently; it had been recommended by the probation department. An impassioned statement delivered by the victim before sentencing led to a petition to remove the judge, which has qualified for the June ballot after drawing nearly 100,000 signatures. The initiative will be on the ballot notwithstanding that the Commission on Judicial Performance, an independent state body tasked with investigating complaints of judicial misconduct, found no judicial misconduct.
Five years ago, Andrew McDonald was nominated to be an associate justice on the Connecticut Supreme Court and he was overwhelmingly approved with wide bipartisan support. His recent nomination to chief justice was rejected by the state Senate, with the votes falling essentially along party lines. Much of the opposition was fueled by his vote with the majority in an unpopular 4-to-3 decision in 2015 holding that the state’s law abolishing capital punishment must be applied to inmates who had been sentenced before the law went into effect. Some supporters have suggested that the opposition was motivated in part by the fact that he would become the first openly gay chief justice in the country.
Those three stories, unfolding simultaneously but in different parts of the country, further evidence how politics has increasingly seeped into the judicial selection process and compromised the independence of our judiciary. They also bring to mind our own experience in New Jersey, including Gov. Christie’s wrongheaded and damaging refusal to reappoint former Justice Wallace, not because he questioned the justice’s competence, but because he disagreed with some of the court’s decisions.
The founders of our nation understood that if courts are not insulated from those who disagree with particular decisions, then majorities will have the power to strip fundamental rights from minorities. If it sounds undemocratic, that’s because it is, and intentionally so. As retired United States Supreme Court Justice Sandra Day O’Connor has noted, “a judge who is forced to weigh what is popular rather than focusing solely on what the law demands” loses “independence and impartiality.”
Removing, or refusing to elevate, judges because of the substance of their rulings reflects a fundamental misunderstanding of the role of the courts and constitutes a blow to the principal of an independent judiciary. We all need judges to decide cases without fear that an unpopular decision will cost them their jobs.