The Return of Judicial Recall Fever Following a Century in Remission

Brian Tamanaha

A century ago, judicial recall fever swept the United States. California, Oregon, and Arizona enacted provisions that allowed the electorate to recall judges who had rendered unpopular decisions; other states across the country considered similar provisions, and a bill to allow the recall of federal judges was proposed as well. These bills were promoted mainly by organized labor as a means to unseat judges corrupted by corporate influence. Judicial recall provisions were hotly debated in bar journals and law reviews in the first decade of the twentieth century. The bar actively fought these bills as a grave threat to the independence of judges. After a decade of agitation, the judicial recall movement died out and the issue went away.

Judicial recall was a front page issue at the time. In 1911, President William Howard Taft refused to sign Arizona’s statehood bill owing to the judicial recall provision in its Constitution. The recall provision was removed to eliminate his objection, whereupon, in 1912, Taft signed the bill admitting Arizona as a state (the citizens of the new state of Arizona then quickly reenacted the recall provision).

Explaining his decision, Taft declared that judges are “not popular representatives.” “On the contrary, to fill their office properly, they must be independent. They must decide every question which comes before them according to law and justice.” Taft argued that judicial recall provisions will discourage people with legal integrity from serving as judges and will intimidate judges, thereby influencing their decisions:

Would not self-respecting men well hesitate to accept judicial office with such a sword of Damocles hanging over them? What kind of judgments might those on the unpopular side expect from courts whose judges must make their decisions under such legalized terrorism? The character of judges would deteriorate to that of trimmers and time-servers, and independent judicial action would be a thing of the past.

Taft also pointed out that the supporters of judicial recall were naïve to think that people would only remove judges who were violating their judicial office:

Nothing could be further from the ultimate result. The motive it would offer to unscrupulous combinations to seek to control politics in order to control the judges is clear. Those would profit by the recall who have the best opportunity of rousing the majority of the people to action on a sudden impulse. Are they likely to be the wisest or the best people in the community? Do they not include those who have money enough to employ the firebrands and slanderers in a community and the stirrers-up of social hate.

Now, fast forward a hundred years. Clear signs of the resurrection of judicial recall fever are evident in last week's elections—most obviously in the unseating of three Iowa Supreme Court Justices who declared a right to same-sex marriage.

Unlike the episode a century ago, the favored vehicle for judicial recall today is not specifically recall provisions. Instead, voters use periodic judicial retention votes to the same effect. The results from last Tuesday’s various judicial elections (links here) suggest that judges are now on notice that they will be punished in targeted campaigns by political opponents the next time they are up for a retention vote.

Interestingly, Taft believed that periodic judicial retention votes did not pose the same danger to judicial independence as recall provisions:

…In the election of judges for a long and fixed term of years, the fear of popular prejudice as a motive for unjust decisions is minimized by the tenure on the one hand, while the opportunity which the people have, calmly to consider the work of a judge for a full term of years in deciding as to his re-election, generally insures from them a fair and reasonable consideration of his qualities as a judge. While, therefore, there have been elected judges who have bowed before unjust popular prejudice, or who have yielded to the power of political bosses in their decisions, I am convinced that these are exceptional, and that, on the whole, elected judges have made a great American judiciary.

Taft’s benign view of judicial retention votes may have been sound at the time, but circumstances surrounding judicial retention elections have changed in at least three essential respects: 1) huge sums are spent on judicial retention campaigns; 2) this money is often supplied by outsiders; 3) these outsiders are often interest groups who seek to advance their causes through the courts. To name just one example, the U.S. Chamber of Commerce spends millions of dollars on judicial retention votes around the country to replace judges they perceive to be unfriendly to business. These judicial retention campaigns often engage in subterfuge—for example tagging the judge as “soft on crime.” And they often focus on a single controversial decision (same sex marriage) or type of cases (criminal cases) to paint an unfavorable, narrow, distorted picture of the judge.

In today’s atmosphere, regularized judicial retention votes can harm judicial independence in precisely the same way as judicial recall provisions because groups stand ready to whip up populist frenzy against judges whenever the next election is scheduled. (The remaining Iowa justices who are scheduled for retention votes in 2012 and 2016 are no doubt already contemplating their post-judicial career.)

It is easy to predict what will follow. Lawyers committed to the law will think twice about becoming a judge out of concern that they will be dragged into nasty, highly politicized election campaigns; seated judges will think twice about rendering decisions that might provoke the ire of organized interest groups (and will shy away from decisions in favor of criminal defendants that might be twisted against them in a campaign); more and more judges confronted with a forthcoming retention vote will choose to retire instead. As Taft warned, the character and legal commitment of people seeking the job may drop (see the Alabama justice who campaigned as the "tea party conservative").

A century ago the judicial recall movement generated great alarm and staunch resistance from the bar. Today, in the face of our increasingly de facto judicial recall system, the bar has been mostly mute. What explains the difference? In Law as a Means to an End, I argued that in the course of the 20^th century, as the US legal culture came to see law in consummately instrumental terms, an instrumental view of law was extended to how judges are perceived as well. We have become inured to the notion that judges can be unseated by ideologically motivated opponents engaging in a strategic effort to shape and alter the legal decisions of courts. (Always, of course, under the banner of replacing "activist judges" with judges who will "rule according to the law.")

The last judicial recall fever broke within ten years. The current judicial recall fever is settling in for a long and debilitating stay.