WASHINGTON: Efforts to curb judges' independence suffered some Election Day setbacks, but supporters pledged to keep up the fight against a judiciary they say has lost touch with America.
The problem, critics say, is that judges too often make laws rather than interpret them. On Tuesday's ballots, the possible solutions ranged from term limits to prison time for judges. All failed, most by wide margins.
Judges say such efforts threaten their autonomy and some legal scholars see them as part of an organized campaign to persuade voters that judges, like legislators, governors and presidents, are policymakers who need political oversight.
At the heart of the dispute is "judicial review," established in 1803 by the nation's third chief justice, John Marshall. It holds that the U.S. Constitution's balance of powers concept cedes to judges the authority to decide whether a law is constitutional. "It is emphatically the province and duty of the judicial department to say what the law is," Marshall wrote.
The frontier of the anti-activist-judge movement was the north-central state South Dakota, where voters considered allowing judges to face lawsuits or jail time for their opinions.
"People are not going to allow judges to take over this county," said Ron Branson, who conceived the South Dakota measure and is promoting it nationwide. "They talk about judicial independence, but they're getting involved in things they have no power to order."
Nine out of 10 voters rejected the idea, but Branson predicted it would take hold in one of several states with active chapters in the "Jail4Judges" campaign.
In Montana, just west of South Dakota, three Republican legislators backed a proposal that would have allowed judges to face recall for any reason. The measure was voted upon but the results were not counted because judges found fraud and deception in the petition drive. Supporters of the measure said it was just another arbitrary ruling by the courts.
"We're not off-the-wall people. We're three leadership people in the Montana House of Representatives," said state Rep. Ed Butcher. He said he and his colleagues were trying to send a message that jurists "have to be judges rather than legislators."
It is a familiar refrain in these debates. Critics, frequently conservatives, have used the phrase "activist judges" to refer to jurists they say legislate from the bench.
President George W. Bush has used the term to criticize opinions such as the court-ordered legalization of homosexual marriage in the northeastern state of Massachusetts.
The critique, however, is not new. President Theodore Roosevelt proposed recalling judges who had grown "out of touch with social needs," and Franklin D. Roosevelt contended the Supreme Court was acting as a policymaking body. "We must take action to save the Constitution from the court," he said.
But anti-court sentiment is growing. The Justice at Stake Campaign, an effort to keep the judiciary independent, called the 2006 election "the most threatening election yet for fair and impartial courts."
"I'm increasingly concerned about the current climate of challenge to judicial independence," retired Supreme Court Justice Sandra Day O'Connor recently told a gathering of state judges. "Unhappiness with judges today is at a very intense level."
That unhappiness was clear in Oregon on the West Coast, where people wrote impassioned statements supporting a measure requiring that appellate judges be selected from diverse areas of the state. The courts currently are dominated by city judges who are reinterpreting the state constitution, supporters of the measure said.
"The Oregon Supreme Court has substantially expanded the rights of criminals, limited the rights of property owners and limited the initiative process," Steve Doell, a victims-rights advocate, wrote for a voter's guide. "Many of the changes instituted by the court are more properly the responsibility of the legislature or of the people."
A similar argument was used to support a Colorado proposal that would have imposed 10-year term limits on judges. Both measures failed at the polls. Federal judges have lifetime appointments, but many judges at state and lower levels must face the electorate periodically.
The "activist judge" proposals reflect a political strategy, said University of Pennsylvania law professor Stephen B. Burbank. If voters are persuaded to see judges as representing constituents or policies rather than simply interpreting the law, it will be easier to pass laws limiting their independence, he said.