Today’s Referendum on Elitism
Nevadans are voting today on a ballot initiative, Question 1, that would replace the popular election of state judges with judicial selection by a special commission (the governor can choose only from among the commission’s recommendations). The Question 1 campaign has generated national controversy because of robocalls to Nevada voters, as well as videos, featuring former Supreme Court Justice Sandra Day O’Connor touting the initiative and warning that popular election of judges breeds corruption.
Criticism of O’Connor has focused on her possible violation of judicial ethics because she continues to sit as a judge on lower court cases. But what caught our attention about the campaign to take responsibility for judicial selection away from the citizens of Nevada and other states is its elitist flavor, epitomized by O’Connor’s statement last year that allowing voters to select judges makes the process "tawdry and embarrassing."
It may be true, as O’Connor and the Nevada legal establishment argue, that elected judges are sometimes influenced by the opinions of the citizens who vote for them and contribute to their campaigns. However, only an elitist attitude can explain why the O’Connor’s camp fears the influence of the public’s passions and contributions more than it worries about making judges unaccountable to the public and beholden to the special interests and political insiders that dominate judicial selection commissions.
Elitism is also on the ballot today in Iowa, where voters will decide whether three of the state’s Supreme Court Justices get to keep their jobs. Judicial retention elections are usually rubber stamps, but the Iowa Justices’ jobs are in jeopardy because all three voted to strike down the state legislature’s decision to define marriage as between a man and a woman. The April 2009 ruling created a constitutional right to same-sex marriage, while specifically rejecting the relevance of Iowans’ democratic determination that a traditional definition of marriage best serves the state.
In typical elitist fashion, the Justices’ supporters have questioned the very legitimacy of citizens voting against retention because they oppose a judge’s decisions. Polls show that a sizeable majority of Iowans oppose same-sex marriage—explaining why the state’s Democrat-controlled General Assembly balked at allowing Iowans to vote on overturning the Court’s ruling—but that is only part of the picture. Iowa’s Supreme Court Justices are in electoral trouble for a larger reason: Iowa voters, like a majority of Americans nationwide, are fed up with activist judges who, by definition, substitute the values of the lawyer class and other elites for the values and judgment of voters.
How did judges so out of touch with the state’s values get on the Iowa Supreme Court? They were chosen by a 15-member judicial selection commission, consisting of seven members of the left-leaning state bar association, another seven Democrats, and a sitting judge.
There is agreement across the political spectrum that 1) the 2010 Congressional elections will largely be a referendum on President Obama, and 2) Obama’s declining popularity is due, in part, to a perception that he’s aloof and out of touch. There’s not much difference between being aloof and elitist, but in any case, Obama has earned the elitist label through the comments he makes when surrounded by like-minded folks at fundraisers.
Recall the San Francisco fundraiser where Obama opined about “bitter” small-town Americans who “cling to guns or religion.” And just last month, at a Boston fundraiser, Obama explained that Americans are dubious of his agenda only because “we're hardwired not to always think clearly when we're scared.”
Similarly, Obama and the Democratic leadership in Congress blamed the deep and widespread opposition to ObamaCare on Americans being misinformed, scared, perhaps racist, and unable to comprehend the President’s health care message through the fog of a fierce debate (despite the President’s 54 speeches on the issue). Like the elites in Iowa and Nevada, Obama and his Congressional colleagues were convinced that something as important as health care reform or judicial selection can’t be left to popular opinion.
Eight months later, popular opinion hasn’t changed—the latest survey finds that 58% of likely voters favor repeal of ObamaCare with 36% against—and Democrats will pay the price for their arrogance as opponents of ObamaCare turn out to vote in large numbers. Similarly, the contempt that the Iowa Supreme Court, Sandra Day O’Connor, and the Nevada legal establishment have shown for public opinion is the reason for intense opposition to what would otherwise be an uncontroversial ballot initiative and a rubber stamp retention vote.