Re: [EL] Voting out judges

Yes, that expanation seems persuasive in the California death penalty situation. It does not, however, necessarily provide guidance in Iowa where the state's Supreme Court unanimously held that the state's constitution protected marriage rights of same-sex couples--a matter not previously the subject of a constitutional amendment. On that "hot-button" social issue, voters may well know how they personally feel about the issue while being unaware of the reasoning of the Court in interpreting the state's constitution.

________________________________

From: Scarberry, Mark [mailto:Mark.Scarberry@pepperdine.edu]
Sent: Tue 11/2/2010 5:50 PM
To: Trevor Potter; Volokh, Eugene; election-law@mailman.lls.edu
Subject: RE: [EL] Voting out judges

When an issue is as clear as many of the death penalty cases were -- and
when the judge votes 64 times in a row to prohibit imposition of the
death penalty after the people have amended the state constitution to
permit it and after the US S Ct has said it is permissible -- then the
voter may quite rationally conclude that the judge has no interest in
following the law. It's true that voters are not as informed as judges,
but the Constitution was not (and state constitutions were not) written
just for judges.

Of course the average voter does not know a whole lot about what kind of
health care reform might be the best, or about what kind of foreign
policy might provide the most security consistent with our values, or
what kind of economic policy might produce the optimally distributed
level of prosperity, or about lots of other things. But we don't require
the voter to follow the views of those who claim to be expert on such
matters, or to vote for those supposed experts who are incumbent
officials (absent sufficient knowledge of such matters for the voter to
be convinced that he or she is more expert than the incumbent).

Now law is not just politics, but it seems that voters are most likely
to replace judges when the voters conclude that the judges are acting as
if law were just a matter of politics. Hence the relevance of a 64-0
record in death penalty cases.

Mark Scarberry
Pepperdine

-----Original Message-----
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Trevor Potter
Sent: Tuesday, November 02, 2010 1:45 PM
To: Volokh, Eugene; election-law@mailman.lls.edu
Subject: Re: [EL] Voting out judges

Eugene writes that in an election/retention system, Judges should be
replaced when they "sufficiently badly misunderstand " the rights they
are interpreting. OK--what is that standard? That a Judge voted
differently than 51 % of the electorate would have? That a judge voted
differently than the voter himself/herself would have on the issue? Does
it make any difference that the Judge has studied the Constitution and
the briefing papers and heard oral argument , and the voter may have no
idea what the constitution even says (a state of affairs polls tell us
exists even with the federal bill of rights)? It seems to me that if
judges are to be something other than pure elected representatives, the
standard for reviewing their actions has to be different too.

________________________________

From: election-law-bounces@mailman.lls.edu on behalf of Volokh, Eugene
Sent: Tue 11/2/2010 4:25 PM
To: election-law@mailman.lls.edu
Subject: Re: [EL] Voting out judges

        Judges are supposed to enforce the rights of the people secured
in the Constitution.  But the question, of course, is what those rights
are -- and what happens when the people disagree with the judges'
interpretation of the rights.  It seems to me that in a system in which
judges are elected, the people may reasonably decide to replace their
current servants with some other set of servants, should they think that
the servants sufficiently badly misunderstand the rights that they're
supposed to be enforcing.

        As to what the judges ought to do, I think the answer is simple:
They should follow what they think the Constitution requires -- just as
I think legislators and executive officials should follow what they
think the Constitution requires (for instance, by vetoing or voting
against laws that they see as unconstitutional).  Of course, if the
people sufficiently disagree with the judges' (or legislators' or
executive officials') views, the people may decide not to reelect the
judges.  And then the judges, God forbid, will become highly paid and
well-respected but not quite as powerful lawyers in private practice.

        Eugene